BEP16 v Minister for Immigration and Border Protection
[2017] FCA 293
•22 March 2017
FEDERAL COURT OF AUSTRALIA
BEP16 v Minister for Immigration and Border Protection [2017] FCA 293
Appeal from: Application for leave to appeal: BEP16 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2389 File number: NSD 1645 of 2016 Judge: O'CALLAGHAN J Date of judgment: 22 March 2017 Catchwords: MIGRATION –application for leave to appeal from an interlocutory decision of the Federal Circuit Court of Australia – whether decision attended by sufficient doubt to warrant grant of leave – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 24(1A)
Migration Act 1958 (Cth), s 36(2)(a) and (aa)
Federal Circuit Court Rules 2001 (Cth), r 44.12
Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
SZVAP and Another v Minister for Immigration and Border Protection & Anor (2015) 233 FCR 451
Date of hearing: 8 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: Applicant appeared in person Counsel for the First Respondent:
Mr R White Solicitor for the First Respondent:
Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1645 of 2016 BETWEEN: BEP16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
22 MARCH 2017
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant 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
O’CALLAGHAN J:
This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing the applicant’s judicial review application under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). A decision under r 44.12 is interlocutory, so leave is required to appeal to this Court: Federal Court of Australia Act 1976 (Cth), s 24(1A).
Background
The applicant is a citizen of Bangladesh who arrived in Australia by boat, having left Bangladesh using a false passport. He applied for a protection visa on 4 April 2013, which was refused by a delegate on 13 November 2014. The applicant sought review of the delegate’s refusal in the Administrative Appeals Tribunal (the Tribunal). The Tribunal conducted a hearing on 27 April 2016 and, on 3 May 2016, affirmed the delegate’s decision. The applicant subsequently sought judicial review of that decision in the FCCA and that application was dismissed on 13 September 2016.
The applicant’s protection claim is made on the basis that he will be harmed if he returns to Bangladesh by reason of his actual or imputed political opinion. Specifically, he claims that as a supporter of the Bangladesh Nationalist Party (BNP) he faces harm by the Awami League and Bangladeshi law enforcement authorities.
The Tribunal proceeding
The Tribunal considered whether the applicant met the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), on the basis of being a refugee, or the criteria in s 36(2)(aa), on the basis of there being substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he would suffer significant harm.
The applicant claimed, in summary, that:
(a)He joined the BNP in 2007 after being introduced to the party by his cousin, who was a community leader in his village. His early involvement in the BNP consisted of running errands and attending meetings and social events.
(b)Shortly after he joined the BNP, he was falsely accused of being involved in a fight between the Awami League and the BNP in which a supporter of the Awami League was injured. He was named as a participant in statements taken by police following the incident, even though he did not see the fight take place. The Awami League subsequently brought a “false case” against him in relation to the incident.
(c)Sometime following the fight, he was appointed Vice-President of the BNP committee in his village.
(d)He was at risk of attack by the Awami League because of his perceived involvement in the 2007 incident or because he is known to be a supporter of the BNP. The Awami League had visited his family home looking for him several times since 2009. And he may also be targeted by Bangladeshi law enforcement authorities, who serve the Awami League’s interests.
(e)Since arriving in Australia, he had attended several BNP meetings.
(f)He faces harm if returned to Bangladesh because he left the country using a false passport.
In determining that the criteria in s 36(2)(a) were not met, the Tribunal made adverse findings on the credibility of the applicant and about the veracity of his evidence. Specifically, the Tribunal identified inconsistencies in his evidence, including that he appeared unsure whether the BNP was in power when he joined the party (Tribunal’s reasons at [51]-[52]) and when the Bangladesh elections were held (Tribunal’s reasons at [51], [54], [65]); that he could not identify the colours of the BNP flag (Tribunal’s reasons at [51], [53]); that he gave “inconsistent and unconvincing evidence” about when he became the Vice-President of the BNP committee in his village (Tribunal’s reasons at [51], [55]-[56]); and that, despite claiming that he was the target of a “false case”, he returned to his village multiple times between 2007 and 2012 and he did not leave Bangladesh until 2012 (Tribunal’s reasons at [51], [57]-[60]).
The Tribunal doubted the applicant’s motivations for attending BNP meetings in Australia and concluded that he had done so for the sole purpose of strengthening his claims for protection: Tribunal’s reasons at [64]-[67].
Having regard to certain country information, including a report produced by the Department of Foreign Affairs and Trade (DFAT), the Tribunal also did not accept that the applicant was at risk of punishment by the Bangladeshi Government upon his return to the country: Tribunal’s reasons at [70]-[71].
The Tribunal generally considered that his claim that he was the target of a false case was improbable (Tribunal’s reasons at [51], [61]-[62]); and that his evidence with respect to his involvement in the BNP lacked relevant and persuasive detail in critical respects and was “vague and changed significantly over time” (Tribunal’s reasons at [51]-[52]).
On the basis of these factual findings, the Tribunal was not satisfied that the criteria in s 36(2)(a) or (aa) of the Act had been met.
The FCCA proceeding
The applicant sought judicial review of the Tribunal’s decision in the FCCA. On appeal, the applicant challenged the Tribunal’s decision on the basis that its findings on the applicant’s credit were unreasonable; that the Tribunal asked “irrelevant questions to test the applicant’s credibility” and failed to take into account relevant considerations; that he was denied procedural fairness; that the Tribunal misapplied the tests for s 36(2)(a) and/or (aa); and that the Tribunal did not consider his claim under s 36(2)(aa).
The primary judge considered that the Tribunal had made findings on credibility that were open to it and could not be said to “lack evident and intelligible justification”: primary judge’s reasons at [30]. The adverse credibility findings being open to the Tribunal, the primary judge considered that there was no arguable case that the Tribunal had failed to take into account relevant considerations or otherwise exceeded, or failed to exercise, its jurisdiction: primary judge’s reasons at [32]. The primary judge also considered that the applicant was afforded procedural fairness, including because he had been on notice that his credibility would be in issue and his representative had addressed that point in submissions prior to the hearing: primary judge’s reasons at [31].
The application in this Court
The applicant’s proposed grounds of appeal are set out in four documents: an application for leave to appeal filed in this Court on 26 September 2016; an affidavit of the applicant filed on 26 September 2016; a draft notice of appeal annexed to the applicant’s affidavit of 26 September 2016; and the applicant’s written submissions filed on 28 February 2017.
The application for leave to appeal contains three purported grounds: first, a bare statement of dissatisfaction with the primary judge’s decision; secondly, a claim, without particulars, that the primary judge erred by failing to identify an error of law; and thirdly, a claim that the applicant was denied procedural fairness before the Tribunal.
The draft notice of appeal adds a further three grounds, namely:
1.[The primary judge]… failed error of law and relief under the judiciary Act. He failed to find that the Administrative Appeals Tribunal (AAT) has not found any evidence in relation to may claims and thus its decision influenced by sufficient doubt.
2.The Administrative Appeals Tribunal's decision was affected by the recent High Court reported decision.
3.Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 03 May 2016 in deciding my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed in connection with the making of the decision were not observed.
(Errors in original.)
The written submissions filed by the applicant identify a further two discrete grounds and then several broadly stated, largely unparticularised, grounds. The discrete grounds are:
1. [The FCCA] failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test of persecution in relation to the Complementary Protection Visa provision contained in section 36(2) (aa) of the Migration Act 1958. The AAT failed to separate the claim to be refugee and fear of harm test for the provision of the Complementary Protection.
2. [The FCCA] failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. I was denied procedural fairness when the Tribunal made opinion based on assumption and possibilities. The Tribunal failed to assess the current situation in Bangladesh where thousands of opposition party workers are arrested recently and harassed by the Awami League governed Authority. In assessing danger to me the Tribunal undermined the danger, I will face if I compelled to return Bangladesh as returned Asylum seeker.
(Errors in original.)
The applicant’s affidavit also makes a number of general, unparticularised claims concerning the correctness of the primary judge’s decision, namely that: the primary judge dismissed the application “without giving any reasonable grounds”; the primary judge failed to “[take] into account all relevant grounds…”; the applicant was denied procedural fairness; and the primary judge “failed to identify the error made by the Administrative Appeals Tribunal”. But those claims do not add anything to the claims otherwise contained in the application for leave to appeal, the draft notice of appeal and the applicant’s written submissions.
Consideration
In order for the applicant to obtain leave to appeal, I must be satisfied that in all the circumstances the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal and, assuming that the decision is wrong, that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9.
Application for leave to appeal
Neither of the first two grounds set out in the application for leave to appeal identifies any error of law contended to have been made by the primary judge. They are entirely without merit. The applicant’s claim that he was denied procedural fairness (by ground 3 of the application for leave to appeal and ground 2 of the applicant’s written submissions) before the Tribunal identifies an error of law but lacks particulars and thus relevant content. To the extent that the applicant claims that the primary judge erred by not finding that the applicant was denied procedural fairness before the Tribunal, this ground is unsustainable. The applicant filed written submissions prior to the hearing and, with the assistance of an interpreter and a representative, made oral submissions at the hearing. During the hearing, the Tribunal put to the applicant what it considered to be various apparent inconsistencies in and implausible aspects of the applicant’s evidence. The applicant was also given ample opportunity to respond to the Tribunal’s questioning in respect of critical aspects of his claim. Having found the applicant’s responses to be deficient, the Tribunal proceeded to make findings on credit that were open on the material before it.
Draft notice of appeal
Ground 1 of the draft notice of appeal claims that the primary judge erred by failing to find that the Tribunal had “not found any evidence in relation to [the applicant’s] claims”. I accept the Minister’s submission that this ground misconceives the Tribunal’s function and impermissibly seeks merits review. Having found the applicant’s evidence not to be credible, it was plainly open to the Tribunal to disregard it and, in the absence of other evidence in support of the claim, to find that the criteria in s 36(2)(a) and (aa) were not satisfied.
Ground 2 of the draft notice of appeal is not particularised and I accept the Minister’s submission that, without identifying the High Court decision said to be relevant and the way in which the Tribunal’s decision was affected by it, the ground cannot succeed.
Ground 3 of the draft notice of appeal is also not particularised and does not specify the procedures required by the Act or the regulations alleged not to have been followed. To the extent that this ground is intended to go further than the applicant’s claims with respect to procedural fairness, there is nothing in the Tribunal’s reasons that points to procedural irregularity. The Tribunal’s assessment of the applicant’s evidence was cogent and detailed. The Tribunal’s decision sets out the evidence presented to it in respect of the applicant’s claims (at [32]-[47]); sets out the questions that were asked of the applicant to seek to clarify what the Tribunal considered to be inconsistent and implausible evidence, as well as his answers to those questions (at [49]-[66]); and then sets out the Tribunal’s findings with respect to the applicant’s credibility and its reasons for rejecting his evidence (at [67]-[71]).
Applicant’s written submissions
Ground 1 of the applicant’s written submissions contends, without particulars, that the primary judge erred by failing to find that the Tribunal did not apply “the correct test of persecution in relation to… section 36(2)(aa)” and conflated the tests prescribed by s 36(2)(a) and/or (aa). A more general claim is made later in the applicant’s written submissions that the Tribunal applied the incorrect test under s 36(2)(aa) “when it did not follow Rules of Real Risk Test of persecution and harm”. To the extent that the applicant contends that the Tribunal misconstrued or misapplied s 36(2)(a) or (aa), these claims do no more than seek to cavil with the Tribunal’s findings on credit. For reasons given above, those findings were open to the Tribunal on the material before it. To the extent that the applicant contends that the Tribunal impermissibly assessed his claim against s 36(2)(a) and (aa) together, that is simply not so. The Tribunal considered the question of whether Australia owed the applicant protection obligations under the Refugee Convention at [72]-[73] before, at [74]-[75], turning separately to consider whether there was a real risk that the applicant would suffer significant harm if removed from Australia (for the purposes of s 36(2)(aa)). That the same factual findings were the premise of each assessment does not manifest error.
Ground 2 of the applicant’s filed written submissions contends that the primary judge erred by failing to “take up and separately deal with the factual issues”. This ground wrongly assumes that it was open to the primary judge to revisit the factual bases of the Tribunal’s decisions, so it provides no arguable basis for impugning the primary judge’s decision. The FCCA’s function on appeal is to review for jurisdictional error, not revisit merits. It is also sought to be contended that the applicant was denied procedural fairness when the Tribunal “made opinion based on assumption and possibility”. But that contention can be put to one side for the reasons given at [19] above.
The applicant’s written submissions also make a number of other claims, which are generally directed to the merits of the Tribunal’s decision and the factual findings that followed from its assessment of the applicant’s credibility. Specifically, the applicant claims that the Tribunal erred by failing to consider each issue of his claim, made its decision with a “closed mind” and did not take into account all of the oral and written submissions put to it. The various iterations of this submission made in the applicant’s written submissions are premised on the misconception that it was not open to the Tribunal to reject evidence on the basis of its assessment of the applicant’s credibility. As the Minister rightly submitted, the Tribunal is not required uncritically to accept any and all allegations made by an applicant: see also Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2.
That is not to say that adverse findings as to credit can never expose jurisdictional error: see, e.g. SZVAP and Another v Minister for Immigration and Border Protection & Anor (2015) 233 FCR 451 at [14]-[23]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38]. But the Tribunal’s findings on credit in this case do not appear to be illogical, irrational or unreasonable, nor do they appear to have been arrived at in a manner that denied the applicant procedural fairness. On the contrary, the Tribunal gave detailed and persuasive reasons for its findings that the applicant’s evidence was in critical respects implausible and inconsistent, having provided him with ample opportunity to address the Tribunal’s concerns. Accordingly, I can see nothing in the Tribunal’s reasons that exposes jurisdictional error of the kinds discussed in SZVAP and Another v Minister for Immigration and Border Protection & Anor (2015) 233 FCR 451 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146.
To the extent that the applicant claims that the Tribunal made its decision with a closed mind, no meaningful particulars are provided to support this allegation and I can see nothing in the Tribunal’s reasons to suggest that the Tribunal was affected by bias or anything of the sort.
The applicant also claims that the Tribunal erred by failing to take into account country information other than that produced by DFAT. The Tribunal was entitled to rely on the DFAT country material: see, e.g., NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. Moreover, as the Minister submits, the Tribunal was not under a duty to make inquiries about the applicant’s claim: compare, e.g. Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170.
Conclusion
For the reasons given above, I am not satisfied that the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal. The application for leave to appeal is dismissed. The applicant should pay the first respondent’s costs, to be agreed or assessed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 21 March 2017
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