BQA16 v Minister for Immigration and Border Protection
[2017] FCA 164
•28 February 2017
FEDERAL COURT OF AUSTRALIA
BQA16 v Minister for Immigration and Border Protection [2017] FCA 164
Appeal from: Application for leave to appeal: BQA16 v Minister for Immigration & Anor [2016] FCCA 2724 File number: NSD 1926 of 2016 Judge: KATZMANN J Date of judgment: 28 February 2017 Legislation: Migration Act 1958 (Cth) ss 65, 423A, 424A(3)(a), 430(1) Cases cited: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
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: 33 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr D Eberl of Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1926 of 2016 BETWEEN: BQA16
Applicant
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 application be dismissed.
2.The applicant 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 applicant arrived in Australia by boat from Malaysia on 28 March 2013. Sometime thereafter he applied to the Minister for a protection visa. He is a Bangladeshi national who claims to fear persecution in Bangladesh for political reasons. The Migration Act 1958 (Cth) gives the Minister (or his delegate) the power to grant visas of various kinds but no visa can be granted unless the Minister is satisfied that the applicant meets the criteria set out in the Act and Regulations. In this case a delegate of the Minister, who considered the applicant’s application, was not satisfied that he met the criteria for the grant of a protection visa. In that event he was obliged (by s 65 of the Act) not to grant the visa. The applicant applied to the Tribunal for merits review, but the Tribunal came to the same conclusion. There is no right of appeal from such a decision (see s 474 of the Act) but the Federal Circuit Court has the power to issue constitutional writs (s 476). The applicant applied to the Federal Circuit Court for relief of that kind. That relief is only available for jurisdictional error and at a show cause hearing the court dismissed the application on the ground that it failed to disclose an arguable case of jurisdictional error. The applicant now seeks leave to appeal.
Generally speaking, leave to appeal will be refused unless the decision under challenge is attended by sufficient doubt to warrant its reconsideration on appeal and, assuming the decision to be wrong, substantial injustice would result: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9.
I accept that substantial injustice would result if the primary judge’s decision is wrong, but the applicant has failed to show that the decision is attended by sufficient doubt to warrant its reconsideration on appeal. Accordingly, leave should be refused.
The grounds of the leave application are (without alteration):
1.The Federal Circuit Court of Australia did not give any weight to the supporting documents which I lodged before the Court in support of my claims.
2.The Federal Circuit Court of Australia failed to uphold my natural justice.
The supporting documents were not identified. Indeed, no particulars of either ground were given.
At the hearing I asked the applicant what he meant by those grounds. He replied that he felt that the court did not consider his case properly. When I asked him what he meant by “natural justice”, my question was met by a lengthy silence. When I then asked whether he was unable to explain what he had meant, he said he had given everything in writing, referring to written submissions he had filed on 13 February 2017. He indicated that he did not wish to be heard further in support of his claim, and that everything that he wanted to say was contained in those submissions.
The draft notice of appeal bears little or no relation to the two grounds of the leave application. It contains seven grounds, which are identical, including the spelling and grammatical errors, to the grounds of appeal in the notice of appeal filed in AYU15 v Minister for Immigration and Border Protection [2017] FCA 151, an appeal by another Bangladeshi national who was refused a protection visa and who lost his application in the Federal Circuit Court. Before I turn to consider the grounds of appeal in the draft notice of appeal and the submissions in support of them, it is necessary to say something about the background to the application.
Background
The applicant claims that his eldest brother was general secretary of Jamaat-e-Islami in his local area and that he feared harm from the Awami League, which, he said, had demanded money from his brother, threatening to hurt him if he did not pay. He said that he was concerned for his own safety because of his close relationship with his brother, including working at his brother’s store and assisting Jamaat-e-Islami, and that they both went into hiding before fleeing the country. He claims that after he left he was told by his father that members of Jamaat-e-Islami had come to the family home looking for them.
The Tribunal accepted that the applicant was a Bangladeshi national but did not accept that either he or his brother was involved in Jamaat-e-Islami in the manner he had claimed or that any member of his family had been questioned or targeted by the Awami League for the reasons he had claimed. The Tribunal found the applicant’s testimony to be inconsistent with his claims and with the account he had given the delegate (which it referred to as “the Department interview”), considered him not to be a credible witness, and found that he had fabricated his claims and concocted his evidence. Consequently, it concluded that he did not satisfy the criteria for a protection visa contained in s 36(2) of the Act.
The inconsistencies identified by the Tribunal included:
(1)that when asked about how many times he attended Jamaat-e-Islami meetings on his brother’s behalf, the applicant stated approximately 20 times, in contrast to the “3 or 4 occasions” mentioned at the Department interview;
(2)that when asked about how many protests, rallies and demonstrations he had attended for Jamaat-e-Islami, he replied that he had attended many, “about every two weeks or once a month… from 2004 until 2011”, yet in the Department interview he had said that he had only attended rallies/demonstrations for Jamaat-e-Islami on two or three occasions;
(3)that when asked about the last protest he attended, he said it was held in Kotiadi Upazilla, in Kotiadi town, starting in front of the police station and ending in the same town, however in the Department interview he stated that the last protest he attended was in Kishoregonj District, starting in Bottrish and finishing at Nogua;
(4)that at the Department interview he indicated that he was not present in his brother’s shop when the Awami League first came to demand a donation, whereas at the hearing before the Tribunal he said that he was present in the shop and saw his brother hand over money to Awami League members;
(5)that the evidence he gave at the hearing was inconsistent with the evidence he gave the Department as to:
(a)when each of the two alleged extortion events occurred; and
(b)when and how often members of the Awami League came to his home;
(6)that when discussing hiding at his father’s friend’s house he said in the Department interview that he had only spent one week there in March 2012, when he told the Tribunal that he had spent a month there, arriving in approximately November 2011; and
(7)that, although he claimed to have put up posters at the time of national elections on schools, main roads and elsewhere, he could not recall when the last national election was held before he left Bangladesh in late 2011. When asked how long before, he said approximately one year before, when the Tribunal noted that it was in fact held on 29 December 2008, in other words three years before.
According to the Tribunal’s decision record, each of these inconsistencies was raised with the applicant, but on each occasion he offered no response.
The Tribunal was also concerned that the applicant did not vote in the national election and asked him why. The applicant told the Tribunal that he had not applied for a voter card. The Tribunal considered that a failure to apply for a voter card cast doubt on his claim to be an active supporter of Jamaat-e-Islami as he had alleged. The Tribunal was concerned, too, at the vagueness of the applicant’s evidence and the lack of detail the applicant was able to give as to his brother’s activities in the party when he had claimed to have attended meetings on his brother’s behalf.
The proceeding in the court below
The application for judicial review in the court below raised five grounds (without alteration):
1.The Administrative Appeal Tribunal (Refugee) (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa rejection by the Minister’s delegate.
2.The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.
3.The second respondent has denied the applicant’s natural justice and procedural fairness pursuant to s423A and 430(1)(c) and (d) of the Migration Act 1958.
4.The applicant claims that the Tribunal was preoccupied and that was why he was denied procedural fairness when the Tribunal formed the view about the applicant before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate’s decision.
5.The applicant was deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicant whose interest has adversely affected by the decision as it did not given the opportunity to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.
The primary judge concluded that none of these grounds raised an arguable case for the relief claimed.
In relation to the first ground, his Honour said that the Tribunal had complied with its statutory obligations in the conduct of its review.
In relation to the second, his Honour noted that bias must be “clearly alleged and properly proven”. He observed that the applicant had not identified anything to support such an allegation. He added that the adverse findings of the Tribunal “are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, fair and impartial mind to the determination of [the dispute] on its merits”.
Before turning to the primary judge’s consideration of the third ground, I should say something about the provisions of the Act which it invokes. At the time of the Tribunal’s decision s 423A provided:
(1)This section applies if, in relation to an application for review of an RRT‑reviewable decision (the primary decision) in relation to a protection visa, the applicant:
(a) raises a claim that was not raised in the application before the primary decision was made; or
(b) presents evidence in the application that was not presented in the application before the primary decision was made.
(2)In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
While it is implicit that the Tribunal would be bound under subs (2) to hear an applicant’s explanation as to why the claim was not raised or the evidence not presented, the section is not directly concerned with procedural fairness.
At the time of the Tribunal’s decision, s 430(1) of the Act required the Tribunal to, when it makes a decision on a review, “make a written statement” setting out the following:
(a)the decision of the Tribunal on the review; and
(b)the reasons for the decision; and
(c)the findings on any material questions of fact; and
(d)[references] to the evidence or any other material on which the findings of fact were based; and
…
(Emphasis added)
The primary judge held that, on the face of the material before the court, the Tribunal had complied with its obligations of procedural fairness and the generalised allegation to the contrary did not identify an arguable case of error. He added that the adverse findings by the Tribunal concerning the applicant’s credibility were open on the material before it and could not be said to lack an evident and intelligible justification. He observed that “[t]he issue of credibility had been raised squarely before the delegate”; there was “no arguable case of contravention of s 423A”; and the Tribunal had not failed to comply with the requirements of s 430(1)(c) and (d).
In relation to the fourth ground, his Honour held that there was no evidence before the Court to support the proposition that the Tribunal had predetermined his case or “cut and pasted its decision”.
In relation to the fifth ground, the primary judge considered, on the face of the material before the Court, that the applicant had had a “real and meaningful hearing and an opportunity to give evidence and present arguments”. His Honour repeated that the Tribunal had complied with its obligations of procedural fairness and that there was no arguable case of denial of procedural fairness. His Honour added that the submissions made by the applicant in relation to this ground of review invited impermissible merits review.
The Appeal
The grounds of appeal in the draft notice of appeal are as follows (without alteration):
(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.
Many of these alleged errors were not apparently raised before the Federal Circuit Court. This means that the applicant would require the leave of the Court to raise them on any appeal. 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]. In the absence of an adequate explanation for the failure to take the point and where the point appears to be of doubtful merit, leave should generally be refused: VUAX at [48]. At the hearing I invited the applicant to offer any explanation, in particular for the obvious failure to raise ground three. He responded that he was unaware that an explanation was required. When pressed, he said he had forgotten to deal with the matter in the court below. On any view that explanation is inadequate.
The reasons of the primary judge are not entirely satisfactory. His Honour did not explain the basis upon which he had concluded that the Tribunal had complied with its statutory obligations. Neither did his Honour explain why he had concluded that there was no arguable case that the Tribunal complied with s 423A. Perhaps he was relying on the Tribunal’s observation that it had asked the applicant to explain the inconsistencies but had received no response and the failure of the applicant to contradict the Tribunal’s account of what had taken place. Yet his Honour did not say so. Nor did he explain why he had concluded that the requirements of s 430(1) had been satisfied. Be that as it may, the proposed appeal enjoys no reasonable prospects of success.
First, with the exception of ground three, each of the grounds in the draft notice of appeal proceeds on the mistaken assumption that the primary judge had the power to decide that the Tribunal came to the wrong conclusion on the facts. As Brennan J explained in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35–36:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
In his written submissions the applicant correctly submitted that an administrative tribunal will fall into jurisdictional error if it denies a party procedural fairness. Contrary to the assumption that the applicant appears to have made, however, procedural fairness has nothing to do with the fairness of the outcome. As the term itself signifies, it is concerned with the fairness of the procedures invoked to determine the matter, that is to say, the fairness of the hearing. In particular, it is concerned with providing a party with the opportunity to be heard before a decision against them is made (known as the hearing rule) and the impartiality (actual or imputed) of the adjudicator (known as the bias rule). With the exception of ground three, none of the complaints the applicant makes in his written submissions or, indeed, in his grounds of appeal, relates to either of these matters. They are no more than complaints about the Tribunal’s findings on the merits of his application.
That leaves the third ground.
As I have said, the explanation that was given for failing to raise this ground before the primary judge could not be described as adequate. In any case, the applicant’s written submissions on this ground do not address the point it raises. Rather, the applicant complains that the Tribunal refused his claim because it found him not to be a credible witness although he “presented all relevant documents and evidences to support [his] claims” before the hearing. The applicant alleged that the Tribunal ignored the evidence he provided by which I understood him to be saying that it did not accept what he said. Nothing in the Tribunal’s decision record supports the proposition that the Tribunal failed to consider the evidence that the applicant provided. Ground three was not raised in the court below. As I mentioned earlier, this means that the applicant needs the leave of the Court to agitate it on appeal. Leave is unlikely to be granted.
The only independent information upon which the Tribunal relied was a report of the Department of Foreign Affairs and Trade dated 20 October 2014. The report relevantly stated that supporters or members of political parties in Bangladesh are not at risk of arrest or living in fear of violence on a day to day basis because of their political affiliations. This matter was apparently mentioned in the delegate’s decision which means that the applicant was on notice of it and in a position to respond to it. Section 424A of the Act 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”. But the Department of Foreign Affairs and Trade report is not information covered by the section. That is because the procedure does not apply to “information that is not specifically about the applicant”: see s 424A(3)(a).
The applicant’s written submissions purport to address only grounds one to five. No submissions were made about grounds six or seven either orally or in writing. I asked the applicant whether, if the court granted him leave to appeal, he would wish to rely only on grounds one to five and he said yes.
The submissions generally focussed on the merits of the applicant’s claim for protection and the Tribunal’s finding on his credibility. They do not identify any error on the part of the primary judge. Indeed, they do not engage at all with the primary judge’s reasons. In the absence of any arguable error on his Honour’s part, and in view of the problems associated with ground three, there is no reason to grant leave to appeal. In the absence of any arguable error, the proposed appeal is doomed to fail.
In these circumstances the application should be dismissed with costs.
I certify that the preceding thirty‑three (33) 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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