Federal Court of Australia

EVU17 v Minister for Immigration and Border Protection [2023] FCA 1201

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J

Introduction

1    This is an appeal from a decision of the formerly named Federal Circuit Court of Australia (FCCA). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, affirming a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant protection visas to the appellants:  EVU17 & Ors v Minister for Immigration & Anor [2020] FCCA 2845.

2    The first appellant (EVU17) is a citizen of Bangladesh who arrived in Australia on 21 April 2014 together with his wife and their first child. The family arrived in Australia on visitor visas issued under the Migration Act 1958 and subsequently made a joint application for protection visas. The fourth appellant was born in Australia and was added to the protection visa application. In these reasons it will be convenient to refer only to the case advanced by the first appellant as the other family members’ applications depend on its outcome.

3    The Minister’s delegate refused the first appellant’s protection visa application on the basis that neither of the alternate criteria for the grant of the visa prescribed in s 36(2)(a) and (aa) of the Act were fulfilled. That decision was affirmed by the Tribunal in the exercise of its powers of review under Pt 7 of the Act.

4    On their application for judicial review, the onus was on the appellants to show that the Tribunal’s decision was affected by jurisdictional error:  Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Craig v South Australia (1995) 184 CLR 163. The primary judge dismissed the application on the basis that the grounds of review did not allege jurisdictional error on the part of the Tribunal but rather amounted to an attack on the merits of the decision.

5    Division 4 of Pt 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with:  Act, s 422B. Section 424AA imposes an obligation on the Tribunal as follows:

424AA Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so – the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

6    The three grounds of appeal allege jurisdictional error on the part of the Tribunal involving alleged non-compliance with its obligations under s 424AA of the Act, and a failure on the part of the primary judge to identify that error. They are expressed as follows:

1.    The learned Judge erred in law in holding that:

a.    The Second Respondent (the Tribunal) correctly discharged its obligation under s424AA of the Migration Act 1958 to give the appellant an opportunity to respond to any information that it considers to be a reason, or part of a reason for making its decision.

i.    Specifically, the Second Respondent gave clear particulars of information that formed part of the reason for affirming the decision under review. In doing so it failed to:

1.    Ensure that the applicants understood why the information was relevant to the review and the consequences of that information being relied upon; and

2.    Orally invite the applicants to comment on or respond to the information; and

3.    Advise the applicants that they may seek additional time to comment on or respond to the information.

2.    The learned Judge erred in finding that the Appellant did not present the jurisdictional error set out in ground 1 above in the grounds of jurisdictional review accompanying his application to that court.

a.    As a result, the learned judge failed to properly consider whether that ground constituted a jurisdictional error on the part of the Second Respondent.

3.    The learned Judge erred in not holding that, on the basis of:

a.    the Second Respondent’s error set out in ground 1 above; and

b.    the error of the learned Judge set out in ground 2 above,

the Tribunal had committed jurisdictional error and that such error was material to the outcome of its decision.

7    As explained below, the primary judge did not make any finding as to whether or not the Tribunal had committed the error alleged at [1(a)] of the Notice of Appeal because the argument was not raised on the originating application, nor was it raised in written or oral submissions. The primary judge was under no obligation to identify and resolve arguments that had not been raised before him. It follows that the grounds of appeal alleging appealable error on the part of the primary judge have not been established.

8    The appellants’ argument on appeal alternatively proceeded on the basis that they should be granted leave to contend for the first time in this Court that the Tribunal breached s 424AA of the Act. For the reasons that follow, I have concluded that the argument lacks sufficient merit to justify the grant of leave.

9    It follows that the appeal must be dismissed.

The first appellant’s claims

10    In support of his protection visa application, the first appellant claimed to fear harm if returned to Bangladesh because of his political profile. He claimed that he was an active mid-level leader of the Bangladeshi National Party (BNP) and its youth wing, Bangladesh Jatioabadi Jubodal (JBD), and that he had attracted adverse attention from Awami League operatives and the police. He claimed that he had been subjected to actual and threatened violence, home invasion, attacks on his business, theft, extortion and false charges resulting in spurious court actions.

11    In proceedings before the Tribunal the first appellant relied on a large number of documents in support of his claims, relevantly including documents described by the Tribunal as:

(1)    “purported copy of a letter of complaint to the Home Ministry”, and a receipt for that letter;

(2)    several newspaper articles based on the letter to the Home Ministry, “in poor English” and with “a very poor translation … which was almost unintelligible”;

(3)    copies of documents pertaining to various court proceedings in Bangladesh; and

(4)    a letter of support from SM Jahangir Hossain, Secretary-General of the JBD, stating that following the January 2014 general election, the authorities threatened to kill the first appellant and they had destroyed his business, forcing him to leave Bangladesh.

The Tribunal’s decision

12    The Tribunal acted on country information to the effect that mid-level participants in the BNP were at risk of persecution and harm in Bangladesh by reason of their political affiliations and beliefs. It said that it had formed the impression that the first appellant had drawn on his experience or knowledge “either directly or indirectly, to some extent”, including his knowledge of dealings with local politicians, corruption, illegal activities and legal disputes that had involved him. It acknowledged that the country information indicated an overlap between politics, business and criminality in Bangladesh and the vulnerability of opposition parties, as the government used police and other State agents for political purposes.

13    However, the Tribunal concluded that the first appellant had exaggerated his profile as a political activist. Whilst it accepted that he had been a student member of the of the BNP many years prior to his departure from Bangladesh, it did not accept that he had more recently been a mid-level leader. The Tribunal said:

51    … his broad description of his activities, again give little sense of his actual responsibilities and profile. Despite the official titles, the applicant’s account of meeting with SM Jahangir secretly and in private, and his claimed role (for instance, in providing hiding places for JCD and JBD leaders who were in hiding), there is minimal independent evidence to show what exactly these roles entailed, and what if any profile the applicant acquired – including locally, or with the ruling AL. Similarly, the applicant’s descriptions of ‘our’ activities provides little context for his role and profile were.

52.    In sum, the Tribunal accepts that the applicant supports the BNP; that he has had some involvement with its student and youth wings; and that he has attended some public meetings. Country information indicates that social networks and patronage are important in Bangladesh; this supports the applicant’s claim that he mixed his business, political and social interests, for instance, by hiring people who also favoured the BNP. However, the Tribunal is not satisfied that the applicant’s level of activity, or the official titles that he claims to have held – including, from 2010 until his departure from Bangladesh, Press and Publications Secretary of the BJP in Uttara Thana, Dhaka – were sufficient to establish him as a mid-level leader, or a person of adverse interest to the AL.

14    The Tribunal concluded (at [174]) that the supporting documentary evidence was of “dubious provenance and reliability”. It gave several reasons for that conclusion, including its reliance on country information concerning the prevalence of document fraud in Bangladesh. The Tribunal otherwise expressed concerns that the claimed fear of harm was not consistent with the orderly winding up of the first appellant’s business and family affairs in Bangladesh before his departure, the delay of his departure after obtaining a visitor visa to Australia, and his further delay in applying for a protection visa. The Tribunal was not satisfied that the first appellant’s explanations for those matters were truthful.

15    Under the heading “Summary of Findings”, the Tribunal said (at [92]):

In sum, the Tribunal accepts that the applicant supports the BNP; that he has been associated with some local BNP figures and the party’s student and youth wings in the past; and that he has attended some BNP meetings, and made donations. The Tribunal finds that much of this has been in the context of social and business contacts, as he established garments business in two areas of [redacted]. The Tribunal accepts that the applicant was a vice-president of the JCD at his student college, but does not accept that he has continued to hold official positions in either the JCD or the JBD, or had any other role or responsibilities that have given him a profile. Nor does it accept that he undertook any investigations or other activities that make him a person of enduring adverse interest to the AL.

The arguments based on section 424AA of the Act

16    The arguments founded on s 424AA of the Act relate to two types of information. They were advanced before this Court by reference to a transcript of the review hearing, a copy of which was not before the primary judge. The Minister opposed the Court receiving the transcript in evidence on this appeal. I have had regard to the transcript in order to understand the argument based on s 424AA of the Act. I have also had regard to the transcript for the limited purpose of assessing whether leave should be granted to advance certain arguments on this appeal, including in my assessment of their substantive merit.

17    In the course of the hearing, the Tribunal said that it needed to give the first appellant some country information concerning the political situation in Bangladesh. The Tribunal explained that the delegate’s decision had been based on country information that was no longer up-to-date. The Tribunal said that the updated country information indicated that mid-level participants in the BNP were at greater risk of persecution and harm than had been suggested in previous information. The Tribunal said that it would take into account the more recent information. The Tribunal later repeated that the situation in Bangladesh was presently more dangerous for mid-level operatives than it was at the time of the delegate’s decision.

18    I will refer to that category of information as the BNP Information.

19    Later in the hearing, the Tribunal alerted the first appellant to further country information to the effect that there was a high incidence of document fraud in Bangladesh. The Tribunal stated:

The information is that many people are happy and prepared to write letters for their friends, for constituents, or for people [who] pay them money to say, ‘yeah, this person should be allowed to stay in Australia for this reason [or] that reason.’ Sometimes, the things that [they] [write] are not accurate. Similarly, [news]papers, …it is very easy to get a newspaper [article] [printed] in Bangladesh, partly because the [standards] of journalism are not so high, but also because there are people who are prepared to make false newspapers and make all sorts of false documents. Now, I have to take that into account when I assess the case. I don’t draw any conclusions, but I have to [look at] all of the material that’s before me.

20    I will refer to that type of information as the Document Fraud Information.

21    On appeal, the first appellant submitted that the Tribunal gave clear particulars of each type of information and so complied with its obligation under s 424AA(1)(a) of the Act, however it failed to comply with each of its obligations under s 424AA(1)(b). It was submitted that the Tribunal did not ensure that the first appellant understood why the information was relevant to the review and the consequence of it being relied upon to affirm the delegate’s decision, nor did it orally invite the first appellant to respond to it, nor did it advise the first appellant that he may seek additional time to comment or respond.

22    The first appellant referred to aspects of the transcript which are said to evidence his lack of understanding as to the relevance of the information to the outcome of the review, and the failure of the Tribunal to afford him an opportunity to consider the information or to comment upon it.

23    It was submitted that the Tribunal’s action of affirming the delegate’s decision was based in part on findings that the supporting documents provided by the first appellant were of dubious provenance and were not genuine which in turn was based (at least in part) on the Document Fraud Information.

24    It was submitted that the Tribunal’s affirmation of the delegate’s decision was also based in part on the BNP Information, because of concerns it had expressed in its written reasons about “the [first appellant’s] general description of his role and profile as the JBD press and publication secretary” and its conclusion that the first appellant’s broad description of his activities “[gave] little sense of his actual responsibilities and profile”.

25    It was submitted that the Tribunal’s failure to comply with its obligations under s 424AA(1)(b) of the Act was material to the outcome of the review and therefore amounted to jurisdictional error:  see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. It was submitted that had there been compliance, the first appellant would have been alerted to the Tribunal’s intended use of each type of information. He says that in that event he would and could have advanced more evidence and submissions in support of his claims, including evidence and submissions to dispel any concerns about the provenance of the documents and to clarify the nature and extent of his involvement with the BNP.

The grouns of appeal

26    Each of the grounds of appeal may be shortly disposed of.

Ground 1

27    The first ground of appeal is to the effect that the primary judge erred in finding that the Tribunal complied with its obligations under s 424AA of the Act.

28    That ground cannot succeed because the primary judge made no finding at all about compliance or non-compliance with any of the Tribunal’s procedural obligations, including its obligation under s 424AA of the Act.

Ground 2

29    The second ground of appeal is to the effect that the primary judge erred in finding that the appellants had not advanced the arguments based on s 424AA of the Act and that, as a result, his Honour failed to properly consider whether the Tribunal had committed jurisdictional error in the manner alleged.

30    In support of this ground it was submitted that the grounds for judicial review (identified at [5A] and [5K] of an annexure to the originating application at first instance) ought fairly to have been understood by the primary judge as encompassing a complaint about non-compliance with s 424AA of the Act. Those paragraphs state:

Part 5(A)

In point 34 and 35, Tribunal stated that I had exaggerated and misconstrued my profile to give the political flavour. But Tribunal could not show any grounds in favour of his statement which flavoured the statement just as general suspicion, nothing authenticate. Again in the beginning, Tribunal accepted that applicant was involved in BNP politics in Bangladesh. I believe that suspicion without any strong ground is against the law.

…

Part 5(K)

In point 72 & 73, Tribunal raised the question of genuineness and credibility of the documents. Nowhere, Tribunal could prove that any submitted documents are prepared or edited such as photos of videos are edited. These questions or genuineness are just imaginary suspicion of the Tribunal.

(original spelling and grammar retained)

31    The primary judge said that the grounds for review were “essentially, an expression of disagreement with the conclusions of the Tribunal and an impermissible attempt at merits review”:  EVU17 (at [14]). The primary judge described ground five as taking issue with the credibility findings of the Tribunal, and amounting to an expression of disagreement with conclusions that were open to the Tribunal to make:  EVU17 (at [17]). The primary judge noted that the first appellant had not filed written submissions but had complained that the Tribunal had failed to have regard to country information that was supportive of his claims. The primary judge went on to conclude (at [21]):

…  In broad terms, there can be little doubt that the Tribunal was aware that politically motivated violence and, indeed, politically motivated killing existed in Bangladesh but, essentially, it was not satisfied that the applicant had a profile which put him at risk and, indeed, the Tribunal found specifically that he had exaggerated his profile. I see no jurisdictional error in the consideration by the Tribunal and the application is dismissed.

32    I do not accept that the grounds for judicial review at first instance expressly or impliedly raised any issue concerning the Tribunal’s alleged breach of its obligations under s 424AA of the Act. The primary judge’s description of the grounds as attacking the merits of the Tribunal’s substantive findings involves no error.

33    I am reinforced in that view by the first appellant’s failure in this proceeding to point to any material capable of supporting a finding by this Court that he drew the primary judge’s attention to the exchanges that occurred at the Tribunal hearing upon which he now relies on appeal. In the absence of submissions firmly based in material of that kind, I do not accept that the primary judge ought to have understood the arguments at first instance to encompass an allegation of any such procedural error, notwithstanding the generous interpretation that is to be given to written material drafted by self represented litigants in the FCCA and in this Court.

Ground 3

34    This ground adds little to the others. The primary judge did not commit appealable error by failing to find that the Tribunal erred in a manner that had not been the subject of any argument or evidence before him.

Leave to raise a new argument

35    The Minister correctly submitted that the arguments about non-compliance with s 424AA of the Act are new arguments that cannot and should not be advanced on appeal without the leave of the Court. The appellants made an oral application for leave which they pressed in the event that their grounds of appeal were rejected.

36    As the Full Court emphasised in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46], the Court should grant leave to raise an argument on appeal that was not raised at first instance only if it is expedient in the interests of justice to do so. Leave may be granted if some point not taken below clearly has merit and if there is no real prejudice to the respondent in permitting it to be agitated. However, where there is no adequate explanation for the failure to take the point and the point is of doubtful merit, leave should generally be refused.

37    Leave may be more readily granted in circumstances where it is not opposed by the respondent. In addition, the Court may readily conclude that there is an adequate explanation for a failure to raise an argument if it appears that the appellant had neither legal representation nor legal assistance at any time in the proceeding below. However, where a party has had the assistance of a lawyer in the preparation of his or her case at first instance, in the absence of evidence to the contrary, an inference may be drawn that a decision was previously made not to take the point:  see Raibevu v Minister for Home Affairs [2020] FCAFC 35 (at [95]); AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 (at [26] – [27]). In such a case, leave to raise the new point may be refused, irrespective of its apparent merits.

38    On this appeal the first appellant filed an affidavit to which he annexed a copy of a transcript of the review hearing before the Tribunal. He deposed that the transcript had been produced by a law firm that he had engaged “to assist in the Federal Circuit Court proceeding”. The first appellant stated that he ended up being self-represented “during that application” and that he neglected to put the transcripts before the primary judge.

39    Whilst I accept that the first appellant presented his arguments to the primary judge as a self-represented litigant, he did have the assistance of a lawyer for purposes related to that application. It therefore cannot be said that he had no legal assistance whatsoever. The extent of the legal assistance provided to the first appellant remains unexplained. However, in the absence of cross-examination or other challenge I am prepared to accept that the grounds for judicial review were prepared personally by the first appellant and that he is not seeking to now raise a point to which he had consciously adverted at or before the hearing before the primary judge. The same may be said of the failure to adduce the transcript of the Tribunal hearings in evidence before the primary judge and to make submissions in connection with those portions now sought to be relied upon.

40    Whilst there is some doubt about the extent of legal assistance received by the first appellant, I will proceed on the basis that he has an adequate explanation for not previously asserting jurisdictional error on the part of the Tribunal arising from the alleged non-compliance with s 424AA of the Act. If leave to raise the argument were granted, I would also conclude that the first appellant should be granted leave to adduce new evidence in support of those grounds, in the form of the transcript of the Tribunal proceedings, on the basis that the failure to adduce it at first instance did not involve a want of diligence on his part: Sami v Minister for Immigration and Citizenship (2013) 139 ALD 1 (at [7]).

41    I have nonetheless concluded that the arguments founded on s 424AA of the Act are devoid of merit as will be explained in the paragraphs that follow. It is not expedient in the interests of justice to grant leave to raise what is essentially a ground of judicial review of the Tribunal’s decision that I consider would have had no reasonable prospects of success had it been raised at first instance.

42    In light of the Minister’s opposition to the grant, I am also satisfied that the Minister would be prejudiced by the grant of leave in the sense that he would have no right of appeal from my judgment in disposition of the argument:  see AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 (at [14]).

Merits

43    The BNP Information concerned the risk of harm faced by persons who had a profile as a mid-level BNP member or activist. As demonstrated by the transcript of the Tribunal’s review hearings, the BNP Information was brought to the first appellant’s attention because it differed from country information upon which the Minister’s delegate had relied. It is significant that the BNP Information relied upon by the Tribunal was more favourable to the first appellant than the country information underpinning the delegate’s decision. In its reasons, the Tribunal proceeded from the premise that a person having a profile of a mid-level BNP activist indeed faced a risk of politically motivated harm. That premise was favourable to the first appellant’s case. Accordingly, I do not consider it could reasonably be argued that the BNP Information was information to which s 424AA of the Act could apply. It did not meet the description of “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. To the contrary, the BNP Information was information that could have justified the setting aside of the delegate’s decision, if the Tribunal had been satisfied that the first appellant was a person who had the profile of a mid-level BNP activist. Whether the first appellant was a mid-level BNP activist was a different factual question that was not informed by the general BNP Information. The delegate’s decision was affirmed because the first appellant failed to satisfy the Tribunal of critical facts, not because of the BNP Information.

44    The first appellant took this Court to portions of the transcript by which he urged the Tribunal to tell him if it required any more information from him. By so doing, the first appellant asked the Tribunal to disclose to him what course of reasoning it might take in assessing the evidence he had given in support of his claims. Section 424AA of the Act does not oblige the Tribunal to tell a review applicant whether it is minded to accept his or her allegations of fact on the basis of material provided. Nor does it impose any obligation on the Tribunal to advise a review applicant that his evidence is insufficient to support his claims.

45    In addition, the classes of information to which s 424AA extends is informed in part by s 424A of the Act. It provides:

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

46    As can be seen, the obligation in s 424A does not extend to information that is not specifically about the review applicant or another person and is just about a class of persons of which the applicant or other person is a member:  Act, s 424A(3)(a).

47    As the Full Court explained in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 (at [80]), s 424AA and s 424A are intended to operate in a coherent and complementary fashion. The Full Court said that s 424AA is facultative, providing an alternative method for the Tribunal to fulfil its procedural fairness obligations that otherwise arise under s 424A (at [89]):

The provisions are designed to facilitate the conduct of reviews contemplated by Pt 7 of the Act. If s 424A were triggered during the run of a review hearing and s 424AA had not been enacted, the hearing would have had to be adjourned in order to enable the s 424A(1) written particulars to be given. Such an outcome would be disruptive and inconvenient. If, as is now the case since the introduction of s 424AA into the Act, clear particulars of the relevant information are given at the hearing orally and the Tribunal otherwise complies with s 424AA(b) in its entirety, then the obligations imposed upon the Tribunal by s 424A(1) will be satisfied in substance during the course of the review hearing by the giving of those oral particulars. In that way, the objects sought to be achieved by s 424A(1) will be met.

48    Accordingly, a failure to properly exercise the discretion in s 424AA would not be a jurisdictional error if the Tribunal does not fall foul of s 424A, and a failure to orally put to an applicant information which falls within the exception in s 424A(3)(a) would not be a jurisdictional error. The Full Court said:

82    Section 424A(3) exempts from the obligations imposed upon the Tribunal by s 424A(1) certain kinds of information. One of the types of information exempted from the requirements of s 424A(1) is information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.

83    This type of information is generally called country information (see the discussion as to this in NAMW 140 FCR 572 at [64]–[74]).

…

90    …  Given the primacy of s 424A(1) and the exceptions to it, it would be absurd to interpret the section in a way which exempted country information from the s 424A(1) requirements but did not do so in respect of the s 424AA requirements.

91    In our view, the ‘information’ covered by each section must be the same. Under s 424AA, country information simply need not be mentioned at all either because it is not ‘information’ within the meaning of that term in s 424AA or because, if it is ‘information’ within s 424AA, it:

(1)    Will be the subject of appropriate particulars as contemplated by s 424AA(a) and the Tribunal will comply with s 424AA(b)(i) to (iv); or

(2)    The Tribunal will not comply with some part of s 424AA.

92    Compliance with s 424AA will lead to the benefit afforded to the Tribunal by s 424A(2A). Non-compliance will cast the Tribunal back into s 424A. Upon being forced back into the s 424A requirements as a result of non-compliance with one or more of the requirements of s 424AA, the Tribunal will get the benefit of s 424A(3)(a) in respect of country information.

93    Thus, one way or another, in respect of country information, failure to comply with all of the conditions laid down in s 424AA will not constitute jurisdictional error.

49    Submissions on this appeal disclosed no reasonable basis to characterise the BNP Information as anything other than country information falling within the exception in s 424A(3). Accordingly, it is not information to which the obligation in s 424AA(1) could apply.

50    It may be accepted that the Document Fraud Information was adverse to the first appellant and so may be regarded as information that the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision. I reject a submission advanced by the Minister to the effect that the Tribunal did not ultimately base its conclusion on the Document Fraud Information. The Tribunal’s express concerns about the provenance and authenticity of the documentary evidence were plainly based at least in part on the country information about the prevalence of fraud. By necessary implication, the Document Fraud Information formed one part of the Tribunal’s reasoning to the conclusion that the delegate’s decision should be affirmed.

51    For the Minister it was also submitted that the Document Fraud Information was not “specifically about the applicant” within the meaning of that phrase in the opening words to s 424A(3)(a). That submission should be accepted.

52    The first appellant submitted that the Document Fraud Information was not “just about a class of persons of which the applicant or other person is a member” and that, accordingly, the exception in s 424A(3)(a) could not apply. An argument to the same effect was rejected by the Full Court in Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298 (at [19]):

In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the Tribunal, as a separate requirement, to make a finding that the relevant ‘information’ is ‘just about a class of persons of which the applicant or other person is a member’. The Full Court observed in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 563 that the reference to the ‘class of persons’ in s 424A(3)(a) ‘is not another criterion to be met’. Rather, the reference ‘is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it’:  see also VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at 95 (per Kenny J) and 99 (per Downes J); NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17].

(original emphasis)

53    See also SZVCZ v Minister for Immigration and Border Protection (2017) 252 FCR 540 (at [46] – [47]).

54    More specifically in Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 430 Nicholson J rejected a contention that information concerning the prevalence of document fraud in Bangladesh was information specifically about a review applicant. In that case the Tribunal had put to the review applicant that document fraud was widespread in Bangladesh, being information it had sourced from materials that included country information reports. Nicholson J concluded:

49    The country information in the above three documents and upon which the Tribunal relied was not specifically about the applicant or another person. The question is was it about a class of persons of which the applicant is a member, that is, Bangladeshi applicants for refugee status. The information in the documents was material which was potentially adverse to the applicant and considered relevant by the Tribunal.  …

50    However, having considered the description of the three documents given by the Tribunal I am of the view that they are documents which, in accordance with usual country information, are about refugee applicants from the country concerned (in this case Bangladesh) and the use by them of fraudulent documentation.  …  Accordingly, I do not consider that an obligation arose pursuant to s 424A

55    That reasoning was applied by Marshall J in VAAC v Minister for Immigration and Multicultural Affairs [2002] FCA 573 (at [20]). On appeal in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 the Full Court said (at [20]):

In our view, the primary judge was correct in holding that the information fell within the exception contained in s 424A(3)(a). The information was just about a class of persons, namely, Afghan nationals who seek the issue of a passport.  …  The authorities which bear upon the construction of s 424A(3)(a) are set out in his Honour’s reasons for judgment at [15]-[23]. We can discern no error in his discussion of those authorities, or in his analysis of the relevant principles. We would dismiss this challenge to his Honour’s decision.

56    In BUK16 v Minister for Immigration and Border Protection [2020] FCA 558, I emphasised (at [45]) that the question of whether the exception in s 424A(3) applied was to be decided in accordance with the facts and circumstances of each particular case. In the present case I consider those facts and circumstances to be no different in substance to those that arose in Islam and I would respectfully arrive at the same conclusion.

57    The first appellant sought to distinguish the authorities on the grounds that the Tribunal took information that was about specific types of fraudulent documentation that was not relevant to the first appellant’s case, drew an inference that encompassed documentation generally in Bangladesh, and then applied that inference in assessing his documents. Therefore, it was submitted, the information was “specifically about” the first appellant.

58    That submission must be rejected. The circumstance that the Tribunal drew an adverse inference about the authenticity of the first appellant’s documents does not alter the character of the general country information upon which the Tribunal relied in support of the inference. Whether the inference was legally open to be drawn is a different question not forming the subject of any prior ground of review or actual or proposed appeal.

59    It follows that the arguments concerning the Document Fraud Information must be rejected on the discrete and sufficient basis that the information about the prevalence of document fraud was not specifically about the first appellant. The arguments may be rejected on the additional basis that the information concerning the prevalence of document fraud was about the practices of a class of persons as discussed in the authorities, but it is unnecessary to go so far. On any analysis, no procedural obligation could arise under s 424AA in respect of it. The circumstance that the Tribunal elected to alert the first appellant to the existence and content of the information did not create an obligation to do the things prescribed in s 424AA(1)(b).

60    In the circumstances it is unnecessary to deal with arguments to the effect that the Tribunal did not ensure that the first appellant understood why the information was relevant to the review, as to which see Xue v Minister for Immigration and Border Protection [2018] FCA 1527 (at [14]); Chen v Minister for Immigration and Citizenship (2013) 218 FCR 561 (at [21]).

61    I do not consider it to be in the interests of justice to grant leave to agitate arguments that are contrary to Full Court authority. The first appellant did not argue that the authorities were wrongly decided and I do not consider there to be a proper basis to distinguish them.

62    Before concluding, I should mention that on 29 November 2022, the appellants filed an affidavit annexing a copy of the 2016 Department of Foreign Affairs and Trade Country Information Report – Bangladesh (Country Report), being the “country information” referred to in the Tribunal’s decision. That report was not in evidence before the primary judge. To the extent that leave was sought to rely upon it for the purposes of the appeal, leave should be refused. That is because neither the grounds of appeal nor the application for leave to raise the new argument included a contention that the Tribunal misunderstood or misstated the content of the reports to which it referred.

Associate:

Dated:    11 October 2023

SCHEDULE OF PARTIES