Ayu15 v Minister for Immigration and Border Protection
[2017] FCA 151
•28 February 2017
FEDERAL COURT OF AUSTRALIA
AYU15 v Minister for Immigration and Border Protection [2017] FCA 151
Appeal from: AYU15 v Minister for Immigration & Anor (No 2) [2016] FCCA 2309 File number: NSD 1529 of 2016 Judge: KATZMANN J Date of judgment: 28 February 2017 Legislation: Migration Act 1958 (Cth) ss 36(2), 91R(1), 422B, 424, 496
Federal Court Rules2011 (Cth) r 36.75
Cases cited: BQA15 v Minister for Immigration and Border Protection [2017] FCA 164
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 28 February 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 53 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr J Pinder of MinterEllison Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1529 of 2016 BETWEEN: AYU15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
28 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Revised from transcript
The right of non-citizens to enter and remain in Australia is tightly controlled. The power to grant visas is vested in the Minister by the Migration Act 1958 (Cth), although it may be delegated by an instrument in writing (s 496). The Minister (or his delegate) may only grant a visa if satisfied that the criteria set out in the Act and Regulations have been met; otherwise he (or she) must refuse to grant it. An unsuccessful applicant may have a right to merits review by the Administrative Appeals Tribunal but if the Tribunal is not so satisfied his or her only recourse, short of persuading the Minister to change his mind, is to apply for judicial review.
The appellant is a Bangladeshi national, now in his mid-20s. In June 2012 he arrived in Australia by boat from Malaysia without papers as “an irregular maritime arrival”. He was questioned by immigration officials on three occasions: 15 June 2012 (when the “BIODATA” form was completed), 28 June 2012 (at an “irregular maritime arrival entry interview”) and on 3 July 2012 (at a “detention client interview”). At his irregular maritime arrival entry interview, when asked about his reasons for leaving Bangladesh, he said that his family had financial problems, that there were “political problem” and “fighting”, and sometimes “robbery”, and that “they take things from your home”. He said that there was no other “main” reason, adding that because of the family problem he was unable to continue with his studies. In September 2013, however, he applied for a protection visa.
The principal criterion for the grant of a protection visa is set out in s 36(2) of the Act. At the relevant time, so far as it is material, s 36(2) provided:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm[.]
The reference in para (a) to the Refugees Convention is a reference to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Refugees Protocol to the Protocol relating to the Status of Refugees done at New York on 31 January 1967: Migration Act, s 5. Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (together “the Convention”) to anyone who is a refugee within the meaning of Art 1A(2) of the Convention. That includes anyone who, owing to a well-founded fear of being persecuted for certain specified reasons (including, relevantly, political opinion and membership of a particular social group), is outside the country of his nationality, and is unable or, owing to that fear, unwilling to avail himself of the protection of that country. By s 91R(1) of the Act (now s 5J), however, the application of Art 1A(2) is excluded unless:
(a)the reason or reasons are “the essential and significant reason” or reasons for the persecution;
(b)the persecution involves “serious harm” (defined in subs 91R(2)) to the person; and
(c) the persecution involves “systematic and discriminatory conduct”.
“Significant harm”, for the purposes of para 36(2)(aa), is defined in subs 36(2A) to mean arbitrary deprivation of life, the execution of the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
In the present case, the Minister’s delegate was not satisfied that the appellant met the necessary criteria, nor was the Tribunal, and, although he filed an application for judicial review, the appellant failed to persuade the Federal Circuit Court that the Tribunal had fallen into jurisdictional error, the only basis upon which relief could have been granted: see Migration Act, s 474 and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. In this appeal, the appellant contends that the primary judge was wrong to dismiss his application and seeks orders, amongst other things, setting aside the orders he made.
The visa application
In a statutory declaration accompanying his visa application the appellant claimed to have fled Bangladesh in fear of persecution by reason of his political opinion and as a member of a particular social group, which he characterised as supporters of the Bangladesh National Party (“BNP”). In substance, this claim was based on two alleged experiences — a violent assault upon him by members of the ruling Awami League and attempts he made to evade the police having been falsely accused of murder, allegedly at the instigation of an Awami League leader — neither of which he mentioned when he was interviewed by immigration officials on arrival in Australia.
In his statutory declaration, the appellant said that he and his brother were “involved in politics” for the BNP and that he had been involved since he was a child. He stated that party leaders told supporters to collect money from people who had refused to pay them bribes and told him to join them in drug taking. He said that he tried to distance himself, but that the Awami League still identified him with the BNP and that, when he was about 17, supporters of the League attacked, beat, cut him with a machete and threatened to kill him. He said that the attack occurred in a field and he was beaten to a state of unconsciousness by “around seven people”, one of whom (R) he named as a leader of the Awami League and “a political enemy” of his family. He said that he was taken to the village doctor who reported what happened to the police. He claimed to bear the scars of the attack on his face, elbows, shoulder, thigh and ankle. Afterwards he said he did not go out at night and was afraid to leave his village.
The appellant also stated that in June or July 2010 a person was killed in a village about 10 kilometres from his. He claimed that the victim’s son informed the police that the appellant and his brother were responsible, after — so they were told — R had pressured the victim’s son into giving their names. When he learned that the police (whom he considered “very corrupt” and under R’s influence) were on the lookout for him and his brother, he went into hiding. He said he was constantly on the move to avoid arrest until he flew to Malaysia in September 2011. After he arrived in Australia, however, he learned that the charges against him had been dropped, although, he stated, his brothers were still “under pressure” from the Awami League.
The appellant contended that he was afraid that if he returned to Bangladesh he would be killed by the Awami League or, once again, falsely implicated by the police.
Before he lodged his visa application, the appellant submitted to the Minister’s Department:
·a copy of a document (in English) purporting to be a letter from the chairman of the Jessore District listing three people as supporters of the BNP;
·copies of other documents, also in English, purporting to be notarised translations of witness statements relating to the arrest of three people; and
·a document purporting to be a court record naming three defendants in a murder case.
As the delegate observed, however, none of the people named in the documents bore the same name as the appellant. When questioned by the delegate about this, the appellant was unable to provide a reason, merely saying that his brother had prepared everything.
With his application the appellant provided two other documents. One was a copy of an affidavit in Bengali together with an English translation stating that the signatory had lodged a case against him but had withdrawn his complaint after the intervention of the local council chairman. The other was a “certificate” purportedly from the chairman stating that the appellant had been actively associated with a political party, had been a victim of continued repression on this account, and therefore needed to travel abroad.
The Tribunal decision
Having questioned the appellant (through a Bengali interpreter) about his claims and noting that he appeared to have understood and responded to its questions, the Tribunal concluded that the appellant was “not a person of credibility”. Shortly I will explain why but, having regard to the application made in the Federal Circuit Court, it is necessary to say something more about the Tribunal’s observations concerning the appellant’s understanding. At [14] of the Tribunal’s decision record, the Tribunal stated:
The Tribunal has had regard to the psychometric assessment in relation to the applicant, conducted at Yongah Hill Immigration Detention Centre, which is included in the Departmental file. The applicant has not informed the Tribunal of his inability to give evidence or participate in a hearing. He did so without any apparent difficulties. He appears to have understood, and responded, to the questions posed by the Tribunal. Overall, the Tribunal is satisfied that the applicant had a genuine opportunity to give evidence and present arguments.
The Tribunal came to the conclusion that the appellant was not credible for several reasons, but placed “significant weight” on the fact that there were substantial contradictions between the claims he made at the entry interview and the claims he made in his visa application. The Tribunal noted in particular that in the entry interview he did not mention:
·money collection or drug use;
·any attempt to disassociate himself from the BNP;
·subsequent attacks on him; or
·false murder “charges” filed against him.
The Tribunal took the view that, if the claims made in the visa application were true, the appellant would at least have referred to them in his entry interview.
Since the appellant told the Tribunal that the charges were only dropped some six or seven months after he came to Australia, the Tribunal considered that, if he was to be believed, it was inexplicable that he would not refer to this matter in his entry interview. Moreover, the Tribunal considered it significant that, in response to the question whether “police and security or intelligence organisations impact[ed] on [his] day to day life”, the appellant answered “no”. The Tribunal said that this answer “contradicts the very basis of the [appellant’s] protection visa claims that the police came to arrest him on several occasions and that it was one of the reason[s] he had been in hiding for months before he left [Bangladesh]”.
The Tribunal was also struck by the inconsistencies in the two accounts: the focus on the family’s financial problems and general political violence in the entry interview in contrast with the different account(s) given in support of the visa application. The appellant’s explanation for not referring to the matters on which he relied in his visa application, particularly the murder charge, was that he was fearful of being returned to Bangladesh and he wanted people to have sympathy for him. The Tribunal was not persuaded by this explanation. Indeed, it described it as “nonsensical”. The Tribunal did not accept that the appellant believed he would get greater sympathy from the interviewing officials if he referred to the family’s economic woes and opportunities in Australia than if he had told them that he might be killed or harmed for his political views. The Tribunal concluded that the appellant had fabricated the claims he had made in support of his visa application, having decided that what he had told the officials would not suffice. The Tribunal also noted several discrepancies in the appellant’s evidence and inconsistencies between his oral and written evidence and observed that on a number of occasions when it pointed these matters out to the appellant he “changed his evidence”. For example:
As to his relationship with the BNP
·The Tribunal described the appellant as evasive when asked whether he was a member of the BNP, first saying he was a supporter but ultimately saying he was a member, yet unable to satisfactorily explain the joining process:
oThe appellant claimed that everything was done orally, there was no paperwork, no fees were charged, and he had no membership card, yet the BNP Constitution establishes a process for joining and requires a form to be completed;
oThe appellant could not remember when he joined, suggesting said that he joined at about 16 or 17, but the minimum age for membership under the Constitution is 18;
·The appellant told the Tribunal he made a mistake in the Departmental interview because he could not remember what BNP stands for, something which the Tribunal would not have expected of a member of the BNP;
As to the beating he allegedly received in the field
·He told the Tribunal that he was beaten up about two years before joining the BNP, in his statutory declaration he said he was 17, and in a document provided with his application (from his local Parishad) the assault is said to have occurred on 1 June 2010 (when he would have been just shy of 20);
·He told the Tribunal he did not know how many people assaulted him in the field but in his statutory declaration he said there were seven;
·He told the Tribunal he could not remember the weapon used on him and suggested it might have been “a heavy knife”, whereas in his statutory declaration he said he was cut with a machete;
·He told the Tribunal he was unsure of whether his brother or the doctor reported the matter to the police and when the Tribunal reminded him of what he had put in his statutory declaration he said that he discovered later that it had been the doctor;
As to the appellant’s response to the alleged attack
·The Tribunal considered that the fact that the appellant continued to live at the same address, went to work in his father’s shop, albeit irregularly, and made no effort to remove himself from harm by moving to another location suggested he was of no interest to anyone;
As to the evidence in relation to the murder allegation
·The appellant was unable to tell the Tribunal when he was accused of murder and his statement to the Tribunal that the murder occurred in January or February 2010 was inconsistent with his written statement that the killing had taken place some six months later and both statements were inconsistent with later oral evidence that it occurred in around March 2010 and with the incident report he presented with his application which referred to an incident in May 2010;
·The name of the murder victim the appellant gave the Tribunal was different from the name appearing in the document he submitted with his application;
·The appellant told the Tribunal that the matter had been reported by the victim’s sons but the document stated that it had been reported by the victim’s widow;
·The appellant was unable to recall the name of the third person he told the Tribunal had been accused with him and his brother although it appeared on the court document he had lodged with his application;
·There were discrepancies in his evidence concerning the number of times he claimed to have been able to escape from the police (first three or four, then five times, in contrast to three mentioned in the statutory declaration);
·The Tribunal did not believe that he would have been able to evade the police on three to five occasions;
As to his movements
·The appellant told the Tribunal that he worked almost daily as a shop assistant in the family shop but in his application form he said he was unemployed;
·The appellant told the Tribunal that he lived at the one address until September 2011 when he left Bangladesh in contrast to the claims he made in his statutory declaration that he was in hiding for some months before leaving Bangladesh; and
As to his memory
·The appellant told the Tribunal he could not recall any dates and that since he came to Australia he was under stress owing to his circumstances and the death of his parents, but the statutory declaration, which was made after he had arrived here, provided specific dates.
The Tribunal was unimpressed by any of the supposed corroborative evidence. It gave no weight to the appellant’s scars as it considered there was no way of determining how the wounds responsible for them were sustained. It observed that most of the documents did not contain adequate information to identify the writers, afforded no opportunity to contact them to test their evidence, and referred to a person with a different name. In any event, the Tribunal noted that information before the Tribunal indicated that document fraud is prevalent in Bangladesh and considered that the documents were unlikely to be genuine.
The Tribunal concluded that the appellant was untruthful and rejected all the claims on which his visa application was based. It found that he had never had any involvement with the BNP and that neither had his brother or other family members; that he had not been forced to collect money for the party or take drugs, that he had never been harmed by supporters of the Awami League; that no murder charge had ever been filed against him; and that he had never been of any interest to the police or other authorities. It also found that he had fabricated his entire claim and decided that he faced no risk of harm and thus had no need for Australia’s protection. Consequently, it determined that neither of the relevant criteria in s 36(2) had been satisfied.
The application before the Federal Circuit Court
In the Federal Circuit Court the appellant alleged that the Tribunal committed three jurisdictional errors.
By the first ground the appellant alleged that the Tribunal failed to comply with s 424 of the Act in beginning the hearing “without knowing that [he] had psychological problems” and denied him procedural fairness by interviewing him “in a pressure of time and without any relief for his illness”. He took issue with what the Tribunal said at [14] of its reasons, claiming that he was unable to express himself orally and was always confused. He complained that the interpreter never informed the Tribunal of his ability to speak and understand and that the Tribunal presumed he did so without difficulty. He purported not to understand “nearly half of the issues and questions raised and asked by the Tribunal” and challenged the observation made by the Tribunal that he appeared to have understood and responded to the questions it put to him.
Evidently the appellant relied on a report prepared by a psychologist, Royena Bari, addressed to the Department, dated 28 October 2014, some seven months before the Tribunal hearing. The psychologist stated that:
[The appellant] is a young single Bangladesh asylum seeker who fled from his home country due to serious safety concerns from opposing political members. Currently he has work rights but no medicare access. Currently he is unemployed and is applying for work. However, with limited English and with very little skills finding work for [the appellant] has been an ongoing struggle. [The appellant] reports to be suffering from the following symptoms: Depressed mood, decreased appetite, decreased sleep, decreased energy levels, nightmares about past abuse, feelings of hopelessness about the future and visa status, and some suicidal thoughts (however no current plans). [The appellant’s] current symptoms meet[]the ICD10 diagnostic criteria for MAJOR DEPRESSIVE EPISODE.
(Original emphasis.)
She recommended a further six psychological sessions.
By the second ground the appellant alleged that the Tribunal fell into jurisdictional error by failing to apply the “real test of persecution and harm according to the Migration Act”. He alleged that the Tribunal raised several irrelevant issues to discredit him and insisted that he was truthful.
By the third ground the appellant alleged that the Tribunal failed to apply the correct test for complementary protection under s 36(2)(aa), ignoring the relevant considerations. In support of this ground the appellant maintained that he feared harm for a Convention reason and that there was a real chance he would suffer persecution if he returned to Bangladesh.
The reasons of the primary judge
The primary judge dismissed each of the grounds.
His Honour construed the first ground as a claim that the appellant suffered from a medical condition which denied him a real and meaningful opportunity to present evidence and make submissions as required by s 425(1) of the Act. He acknowledged that, if that claim were made out, the Tribunal would indeed fall into jurisdictional error even if the Tribunal was unaware of the appellant’s condition, citing the Full Court’s judgment in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37].
In order to determine whether the appellant did suffer from such a condition, his Honour examined the evidence.
First he turned to the psychometric assessment to which the Tribunal referred in [14] of its reasons. Earlier in his reasons his Honour said that this appeared to be a reference to the “ASeTTS Torture and Trauma Assessment Report” dated 14 May 2013 prepared by a psychologist at the detention centre, which concluded that the appellant was suffering from “moderate levels of anxiety and depression”. His Honour noted that the report recorded (relevantly) that the appellant had an “[a]lert level of consciousness”, “[n]ormal thought form and content’, ‘[c]orrect orientation to time, place and person”, “[g]ood insight into current situation”, “[s]ound judgment”, and “[an ability] to perform all normal daily activities”. His Honour also observed that the report referred to the appellant having completed a second test for post-traumatic stress disorder (PTSD) in which the appellant scored 2.25 when the report noted that an average score of 2.50 and above was “considered symptomatic for PTSD”.
His Honour concluded that this report did not suggest that the appellant was suffering from any condition that would or could have prevented him from having a real and meaningful opportunity to give evidence and present arguments.
Second, his Honour considered the 2014 psychological report. Although the psychologist concluded that the appellant suffered from a major depressive disorder, his Honour pointed out that she did not say “that the disorder impaired or potentially impaired the appellant’s ability to participate in a hearing”.
Third, his Honour noted that the Tribunal had recorded that the appellant did not inform the Tribunal that he was suffering from any such condition. His Honour said that that suggested that he did not perceive himself to have any difficulties and that his perception was accurate.
Fourth, his Honour referred to the Tribunal’s observation that the appellant gave evidence without any apparent difficulties and appeared to understand and respond to its questions.
Finally, his Honour noted that the appellant did not try to identify the matters about which he was confused or which he did not understand or say that he had said something to the interpreter on the subject.
In the circumstances, his Honour concluded that there was no evidence to support the appellant’s allegations.
Nor did the primary judge accept the allegations made in the second and third grounds that the Tribunal failed to apply the correct legal criteria, observing that the Tribunal rejected the appellant’s claim because it did not accept the evidence proffered in support of it. His Honour said that the particulars given in relation to ground 2 did not raise any jurisdictional error and merely sought merits review. He considered that there was nothing in the Tribunal’s reasons that could suggest that it relied on “irrelevant issues” and that it was reasonably open to the Tribunal to rely on the matters it did for not accepting the appellant as a witness of truth.
The appeal
The appeal was listed for hearing on 24 February 2017 at 10.15am. The listing was made on 21 December 2016. The same day the Registry notified both parties of the listing arrangements — by post to the appellant at the address given on his notice of appeal and by email to the Minister’s solicitors, MinterEllison. The notice recorded the date, time, and place of hearing, and the judge before whom the matter was listed. It advised the appellant that orders, including an order as to costs, could be made in his absence or in the absence of his lawyer, if he had a lawyer, in circumstances where he did not attend court at the specified time. The following day, MinterEllison wrote to the appellant at the same address, enclosing a copy of the email from the Court, and repeating the listing details, adding the following sentence:
Please be aware that if you do not appear on that occasion, the Minister may apply to have the matter dismissed pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules2011.
Rule 36.75(1)(a)(i) entitles a respondent to apply to the Court to dismiss an appeal if the appellant is absent when the appeal is called on for hearing.
When the matter was called on before me at 10.15am last Friday, the appellant did not appear. Arrangements were made to contact him by phone at the telephone number appearing on his notice of appeal. When he was contacted, through the Bengali interpreter arranged by the Court, he informed the Court that he had been unaware that the matter was listed for hearing. He claimed that he had not received any correspondence and he said that, although he could attend Court later in the day, it would be inconvenient for him to do so, and that he would require time, in any event, to prepare the appeal. I was prepared to allow him that time.
I then listed the matter for hearing today at 9.30am. I emphasised to the appellant (through the Bengali interpreter) that, if he did not appear on that occasion, the matter would proceed to hearing. He appeared to understand what I said. In this telephone conversation, I not only told the appellant that the matter would be listed at 9.30am today, but I also provided him with the address of the Court and I ascertained from him that the phone from which he was speaking was a smartphone which could receive text messages.
When the matter was called on today at about 9.34am, once again there was no appearance by the appellant. Mr Pinder, who appeared on behalf of the Minister, read an affidavit in which he stated that at 11.05am last Friday he sent a text message from his mobile phone to the number which corresponds to the number appearing on the appellant’s notice of appeal. That text message recorded today’s date as the date of the hearing, 9.30am as the time of the hearing, and the name and address of the Court, and invited the appellant to confirm receipt. At 4.29pm the same day, Mr Pinder received a text message from that mobile number, indicative of the fact that the appellant had received his text, asking Mr Pinder to send to him the address “where he work[s]”. Mr Pinder then caused a letter to be sent by express post to the address appearing on the notice of appeal, repeating the listing details, asking the appellant to check the courtroom when he arrived at the Court, and once again indicating that if he did not appear, the Minister might apply to have the matter dismissed under r 36.75(1)(a)(i). Yesterday, Mr Pinder requested tracking details for the letter from MinterEllisons’ Sydney mail/courier room and was notified by email that the letter was in fact sent by registered post and was provided with the registered post barcode number.
I am well satisfied that the appellant was aware that this matter was listed for hearing today, and that if he did not appear to prosecute his appeal, the appeal would be heard in his absence. Mr Pinder made the request foreshadowed in the correspondence with the appellant that the matter be dismissed under rule 36.75(1)(a), but in all circumstances it seemed to me that I should do as I had told the appellant I would do, that is, to proceed with the hearing in his absence, and I did so.
Seven grounds are listed in the notice of appeal. I note parenthetically that they are identical in terms to the grounds of appeal in the notice of appeal filed in BQA15 v Minister for Immigration and Border Protection [2017] FCA 164, an appeal by another Bangladeshi national who was refused a protection visa and who lost his application in the Federal Circuit Court. They are, as written:
(i)The Federal Circuit Court Judge erred in law to come to a decision dismissing my application not finding that the tribunal did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party (BNP) prior to my departure from Bangladesh
(ii)The Honorable Federal Circuit Court of Australia Judge did not find that there was lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal failed to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.
(iii)The Honourbale Federal Circuit Court of Australian Judge made errors of jurisdiction not considering the Tribunal's failure to give me a reasonable opportunity to respond to independent evidence in possession of the Tribunal which suggests that I shall not be a victim of harassment of my political belief if I returned to Bangladesh.
(iv)The Federal Circuit Court of Australia Judge made error to find that the Tribunal failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.
(v)The Federal Circuit Court of Australia Judge erred in not finding that the tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.
(vi)The Federal Circuit Court of Australia Judge erred in not finding that the tribunal refused my application on the ground that I would face punishment would be completely politically motivated.
(vii)The Federal Circuit Court of Australia Judged erred in law not finding that the Tribunal failed to consider that I was discriminated for my political belief. The tribunal failed to consider that I shall be victim of significant harassment for my political belief if I returned to Bangladesh now or in the foreseeable future and my persecution is Convention related.
With the exception of ground 3, all these allegations proceed on the mistaken assumption that the primary judge had the power to consider whether the Tribunal came to the wrong conclusion on the facts. As I indicated earlier in these reasons, the Federal Circuit Court has no jurisdiction to inquire into the merits of the application, let alone decide whether or not an applicant’s factual claims are made out; it may only intervene for jurisdictional error. It follows that the errors the primary judge is alleged to have made in grounds 1 and 2 and 4, 5, 6, and 7 are not errors.
Ground 3 was not raised in the court below. As the Minister pointed out in his written submissions, this means that the appellant needs the leave of the Court to agitate it on appeal and leave will not be granted unless it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]. If the point clearly has merit and there is no real prejudice to the respondent if the point is allowed to be agitated, the Court may grant leave but, in the absence of an adequate explanation for the failure to take the point and the point appears to be of doubtful merit, leave should generally be refused: VUAX at [48].
The Minister does not contend that he would be prejudiced if the appellant were to be allowed to argue the point for the first time in the appeal.
Still, I would refuse leave.
First, there is no explanation for the failure to raise the matter in the Federal Circuit Court.
Secondly, the point appears to have no merit at all.
As the Minister noted, the only independent information upon which the Tribunal relied was the BNP Constitution and information concerning the prevalence of document fraud in Bangladesh. Both these matters were raised with the appellant during the hearing in the Tribunal.
Section 424A prescribes a procedure the Tribunal must follow to afford a reasonable opportunity to an applicant to be heard in relation to information which the Tribunal considers would be “the reason, or a part of the reason, for affirming the decision … under review”. It is unnecessary to consider whether or not that procedure was followed in this case, however, because the information with which this ground of appeal is concerned is “information that is not specifically about the applicant” and the section does not apply to information of this kind: see s 424A(3)(a).
Conclusion
For these reasons the appeal must be dismissed. The appellant should pay the Minister’s costs.
I certify that the preceding fifty‑three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 7 March 2017
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