ADA15 v Minister for Immigration and Border Protection
[2016] FCA 634
•25 May 2016
FEDERAL COURT OF AUSTRALIA
ADA15 v Minister for Immigration and Border Protection [2016] FCA 634
Appeal from: ADA15 v Minister for Immigration & Anor [2016] FCCA 291 File number: NSD 338 of 2016 Judge: NORTH J Date of judgment: 25 May 2016 Legislation: Migration Act 1958 (Cth) ss 424A, 424AA Date of hearing: 25 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 27 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Mr P Cleary Solicitor for the Respondents: Mills Oakley ORDERS
NSD 338 of 2016 BETWEEN: ADA15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
25 MAY 2016
THE COURT ORDERS THAT:
1.The application for an adjournment is dismissed.
2.The appeal is dismissed.
3.The appellant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
INTRODUCTION
Before the Court is an appeal from orders made by the Federal Circuit Court on 17 February 2016. The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal, then the Refugee Review Tribunal, made on 9 February 2015. The Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a protection visa.
The appellant is a citizen of Bangladesh who claimed a fear of persecution on the basis of his support and membership of the Bangladesh Nationalist Party. He claimed various office holdings in that organisation and further claimed that he had experienced attacks and abuse in the course of political campaigning.
THE TRIBUNAL DECISION
The Tribunal conducted a hearing and concluded at [16] that:
[T]he applicant’s evidence [was] generally vague and unpersuasive. The tribunal finds the applicant is not a witness of truth and is not satisfied that the applicant has told the truth in relation to critical aspects of his claims.
The Tribunal then discussed six matters relating to the appellant’s claim and demonstrated in each case why the Tribunal did not believe the evidence given.
The appellant was represented before the Tribunal by a migration agent. At the conclusion of the discussion of the six matters, the Tribunal said at [40]:
As noted above, the tribunal finds the applicant is not a witness of truth and is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The tribunal found aspects of the applicant’s evidence inconsistent, implausible and vague when asked for specifics.
The Tribunal then specifically rejected each of the critical elements of the appellant’s evidence at [44]-[53] as follows:
44.Given the tribunal's concerns about the applicant's credibility as noted above the tribunal does not accept the applicant was involved in a Mayoral campaign or that he injured his ankle running away from a confrontation during that election in January 2011. The tribunal notes the applicant continued to live and study in Laxmipur and was unable to identify a specific incident to explain why he left Laxmipur in October 2011. The tribunal does not accept the applicant was of any adverse interest to anyone at that time. The tribunal does not accept that the applicant was the subject of ongoing harassment by the Mayor's son or that he was blocked from campus by AL supporters.
45.The tribunal does not accept that the applicant left Laxmipur in October 2011 because he was in fear of harm.
46.The tribunal does not accept the applicant received any threatening telephone calls after he moved to Dhaka in October 2011. The tribunal notes that when questioned for further detail about the threatening telephone calls the applicant changed his oral evidence, from receiving telephone calls and nothing more, to being threatened in person, twice. The tribunal does not accept that the applicant received any threats, by telephone or in person, while he was living in Dhaka.
47.The tribunal does not accept that the applicant visited Australia to get away from the stress and political problems in his country. The tribunal notes the applicant did not make a protection visa application when in Australia on his first visit and returned to Bangladesh after two months.
48.The tribunal does not accept that the applicant was of any adverse interest to anyone in Bangladesh in 2013. The tribunal notes the applicant was in Laxmipur for three months, including a number of weeks after he was granted a visa for Australia. The tribunal does not accept the applicant was on a Mayor's list for targeting or that he left Laxmipur or Bangladesh in fear of being harmed.
49.The tribunal does not accept that the applicant was or is of any adverse interest to anyone in Bangladesh.
50.The tribunal has considered the country information referred to in the representative's written submissions as well as the DFAT Country Report: Bangladesh (20 October 2014), discussed during the hearing.
51.While the tribunal accepts that country information indicates there is violence between supporters and members of rival political parties in Bangladesh, the tribunal does not accept that the applicant is, or was, a member of the JCD (and or the BNP). The tribunal notes the applicant told the tribunal he has had no contact with the BNP in Australia and the tribunal does not accept his claim that he will express his political opinion wherever he goes. The tribunal does not accept the applicant has any political opinion of opposition to the AL, or any political profile or imputed political opinion, or any political profile or imputed political opinion due to any connection with his family or with Mr Annee or Mr Mintu, which would attract the adverse attention of anyone in Bangladesh.
52.The tribunal does not accept that there is a real chance the applicant would express a political opinion against the AL and in support of the BNP, or that he be harmed by members or supporters of the AL or the authorities or Bangladesh government, if he was to return to Bangladesh.
53.The tribunal finds that the applicant is not a witness of truth and finds there is no real chance that the applicant will be harmed if returned to Bangladesh, and for these reasons the tribunal finds the applicant does not have a well-founded fear of persecution.
It must be said that the decision of the Tribunal as to the appellant’s credibility is as comprehensive as one is likely to see in cases of this sort. This is particularly demonstrated, for instance, by the Tribunal’s acceptance of evidence that the appellant had provided false information and non-genuine documents in two prior visa applications in order to deceive the Department of Immigration and Citizenship, as it then was, and thereby obtain visas.
THE FEDERAL CIRCUIT COURT JUDGMENT
On 6 March 2015, the appellant filed an application for review in the Federal Circuit Court. The grounds of that application were as follows:
1.The Second Respondent made jurisdictional error by failing to comply with the requirements of ss424A and 424AA.
(a) Failing to provide any guidance as to the
(i) relevance of the information to the review;
(ii) The consequences of it being relied on in affirming the decision under review.
(b) By failing to provide clear particulars of information;
(c) By failing to advice [sic] the applicant he could seek more time to respond to the information;
(d) the information was
(i) Concerning application to visit Australia lodged in 2012 and 2013.
(ii) Concerning a visitor visa granted on 19 September 2013.
The appellant was represented by counsel before the Federal Circuit Court. Counsel for the appellant argued that the Tribunal had failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (the Act). That section provides as follows:
(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.
Counsel for the appellant contended that the information that the appellant had been granted a previous Visitor (Class FA)(subclass 600) visa on 19 September 2013 was information to which the section applied. This date was significant because the appellant had said that he had decided to leave Bangladesh in October 2013 whilst this information indicated he had determined to leave earlier.
The Federal Circuit Court determined that this information fell within the exception in s 424A(3)(ba) of the Act, which provides that s 424A does not apply to information:
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.
The Federal Circuit Court held at [5] that the information about the previous visa had been disclosed by the appellant in his protection visa application and that that application was “quintessentially part of the process that led to the decision under review”.
The Federal Circuit Court went on to say that, in any event, the requirement provided by s 424AA of the Act was complied with by the Tribunal. Section 424AA provides that:
(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.
The Federal Circuit Court determined that the Tribunal had complied with s 424AA because the Tribunal gave particulars of the information to the appellant in the course of the hearing and explained to him the significance of it. The Tribunal invited him to comment on it and offered additional time to comment, if needed.
The Federal Circuit Court held that the transcript disclosed that these steps had been taken and that the appellant had responded to the information after asking for and being granted a short adjournment of the hearing.
Consequently, the Federal Circuit Court dismissed the application for review and ordered the appellant to pay the first respondent’s costs.
THE APPEAL
On 8 March 2016, the appellant filed a notice of appeal in this Court. He advanced two grounds of appeal, namely:
(1)The Tribunal made a legal error in failing to consider the full-integers of the applicant.
(2)The Tribunal made a legal error in failing to consider its own Guideline on Vulnerable persons when taking evidence from the Applicant.
Neither of these grounds is particularised. Neither of these grounds was raised before the Federal Circuit Court.
The appellant appeared on the appeal without legal representation, but was assisted by an interpreter in the Bengali language.
The appellant was asked what error he claimed that the Tribunal had made and he replied that he had told the Tribunal all his problems and they did not believe him. He said that he gave the Tribunal supporting documents. It was explained to the appellant that the role of the Court is limited to the correction of errors of law going to the jurisdiction of the Tribunal, and that the appeal was not an occasion to challenge the merits of the fact findings. Following this explanation, the appellant provided no further argument.
The appellant tendered a document headed Applicant’s Submissions. The document purported to follow each of the grounds of appeal, but was similarly lacking in specific allegations of error, except for some contest about the fact findings. The submission was said by the appellant to have been prepared by his brother-in-law. Apart from challenging the fact findings of the Tribunal in very general terms, at least in two aspects it wrongly represented the findings of the Tribunal. For instance, at [1.2] the submission states:
I have been successful to established with Second Respondent that I am a BNP activist.
The Tribunal expressly rejected this evidence at [42].
In paragraph [2.1], the submission stated:
My association with BNP has been substantiated by relevant ‘letters’ and published documents. The Tribunal has not raised any question as to the authenticity of the reference letters, therefore, the test the Tribunal applied has jurisdictional flaws.
As pointed out by Mr Cleary, who appeared as counsel for the first respondent, the Tribunal expressly stated at [43] that it was not satisfied that the letters were genuine documents .
Although no appeal is brought from the substance of the judgment of the Federal Circuit Court, it is clear that the Federal Circuit Court was correct in rejecting the argument based on s 424A of the Act. The grounds of appeal in this Court as expressed by the appellant essentially challenge the fact findings of the Tribunal and impermissibly seek merits review.
Such an attack was not made in the Federal Circuit Court. Leave would be required to argue those matters on this appeal. That leave should be refused. It is not expedient in the interests of justice to allow arguments not raised before the Federal Court to be raised now, both because they were insufficiently particularised and, to the extent that they amounted to a challenge to the finding on the merits, they were bound to fail.
It follows that the appeal must be dismissed.
After judgment was pronounced, the appellant belatedly sought an adjournment of the appeal in order to obtain legal assistance. He explained that he had not been able to obtain legal assistance, although the Federal Circuit Court judgment was delivered some months ago, on 17 February 2016. He said that was for financial reasons.
The application for an adjournment was made too late to be effective, and in any event, there are no grounds on which it would have been granted. The appeal is completely without any chance of success, and any adjournment would serve no purpose. As earlier explained, it is difficult to imagine more comprehensive findings against the credibility of the appellant.
The decision of the Tribunal turned on a complete rejection of the appellant’s credibility, and no fault in the procedure adopted by the Tribunal has been raised or is evident. Consequently, had the application for an adjournment been made before judgment was delivered, it would have been refused. To the extent that it is still open to do so, that application should now be refused.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 31 May 2016
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