BWD16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 602
•9 June 2023
FEDERAL COURT OF AUSTRALIA
BWD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 602
Appeal from: BWD16 v Minister for Immigration [2020] FCCA 1837 File number: NSD 810 of 2020 Judgment of: YATES J Date of judgment: 9 June 2023 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision of the second respondent – where second respondent affirmed a decision of a delegate of the first respondent not to grant a protection visa – no grounds of appeal established – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 91X, 424A, 425, 438 Cases cited: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 258 FCR 1 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 63 Date of hearing: 26 April 2023 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms C Ernst Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS
NSD 810 of 2020 BETWEEN: BWD16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
9 JUNE 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The appeal be dismissed.
3.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
YATES J:
INTRODUCTION
This is an appeal from a judgment of the (then) Federal Circuit Court of Australia (the Federal Circuit Court) dismissing the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal).
The appellant is a citizen of Bangladesh who arrived in Australia in April 2013. He made an application for a protection visa on 24 July 2013. On 5 November 2014, a delegate of the first respondent, then the Minister for Immigration and Border Protection (the Minister), refused the application. On that day, the delegate also issued a certificate and notification regarding the disclosure of certain information under s 438 of the Migration Act 1958 (Cth) (the Act).
The appellant applied to the Tribunal to review the delegate’s decision. At the time, the appellant was represented by a named registered migration agent. However, shortly thereafter, the agent ceased acting for the appellant, who had sought assistance from another migration agent. The appellant subsequently withdrew the appointment of the migration agent acting for him at the time he applied to the Tribunal, and signed forms appointing a different migration agent as his representative and authorised recipient.
The appellant attended a hearing before the Tribunal on 4 May 2016. On 11 May 2016, the Tribunal wrote to the appellant (through his then appointed representative) putting certain information to him for comment under s 424A of the Act. This was information as to the nature of his and his family’s association with the Bangladesh Nationalist Party (the BNP), which the appellant had given in his entry interview, a statutory declaration, his interview with the delegate, and at the Tribunal hearing. The appellant was informed that there was conflicting information relevant to the appellant’s credibility, including whether he would be of interest to the Awami League. There is no evidence that the Tribunal received any response to this letter.
On 30 June 2016, the Tribunal affirmed the delegate’s decision not to grant the appellant a visa.
On 20 July 2016, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 7 July 2020, the Federal Circuit Court dismissed the application.
THE PROCEEDING IN THE FEDERAL CIRCUIT COURT
The appellant’s claims were summarised by the primary judge as follows:
2. The Applicant, a citizen of Bangladesh, arrived in Australia in April 2013. He lodged an application for a protection visa on 24 July 2013. In support of that application he claimed that his parents were staunch Bangladesh Nationalist Party (BNP) political party members in their home village in which most of the villagers were Awami League (AL) supporters. He claimed that “as far as [he] could remember” his father rose to the position of General Secretary in the BNP representing a group of villages including their home village and was involved in organising political meetings, rallies and other BNP related activities.
3. He claimed that after the AL came to power in Bangladesh in 2009, BNP party activists such as his father were specifically targeted by AL supporters and members and that his father had received several death threats.
4. The Applicant claimed that on 14 September 2010, 10 to 15 AL supporters and members, some of whom were armed, came to the family home, forced their way in and began beating members of the family. It was claimed that one of the AL supporters killed the Applicant’s father by shooting him at point blank range, that during the altercation three of his brothers were stabbed and that the perpetrator who shot his father fired a bullet into the Applicant’s thigh. He claimed the perpetrators left after destroying household property, that his uncle took him to hospital where he was treated and that his brothers were taken to another hospital. The Applicant claimed that while the family members were at various hospitals the perpetrators returned to the family home and set it alight.
5. The Applicant claimed that after recovering from the bullet wound he went to live at an aunt’s residence and then lived with another aunt in Dhaka. He claimed his mother attempted to make an official complaint at a nearby police station, but that the police refused to record the complaint or take action against the perpetrators as the case involved ruling party supporters.
6. The Applicant claimed his mother returned to live in the village in 2011, but that he and his siblings did not do so because they feared they would be killed by AL supporters. He claimed he learnt that AL supporters had gone to his mother’s residence in search of him and his brothers and had verbally and physically assaulted her. He claimed that a few weeks before he fled the country his aunt had learnt that members of the AL had found out about his whereabouts and were planning to harm him. The Applicant claimed that since arriving in Australia he had learnt, through his aunt, that AL supporters had come to her residence in Dhaka in search of him on several occasions. He claimed that AL supporters were pursuing him and his brothers because they had witnessed the killing of his father, that the AL feared that he and his brothers may take action and that he would be seriously harmed and killed by the AL supporters and members who killed his father if he returned to Bangladesh.
It is clear from the primary judge’s reasons that her Honour undertook a careful and comprehensive analysis of the appellant’s application for judicial review, commencing with a thorough survey of the Tribunal’s decision.
The primary judge recorded that the appellant had filed two amended applications following the filing of his first application on 20 July 2016. The appellant informed the primary judge that he wished to rely on the grounds of his second amended application. However, as matters transpired, the appellant proceeded to raise numerous other issues.
The hearing at the Federal Circuit Court was adjourned on more than one occasion. The appellant filed further affidavit evidence and submissions in relation to some issues that were not reflected in his pleaded grounds. The primary judge recorded that she had considered all of the material advanced by the appellant.
The primary judge commenced by considering each ground raised by the appellant in his second amended application. Her Honour found that none of the grounds in this application were made out. Although stating that he wished to pursue only the grounds in his second amended application, in the course of the hearing before the primary judge it emerged that the appellant wished to raise several other issues, including those raised in his earlier filed applications. Thus, the primary judge turned to consider the grounds raised by the appellant in his first amended application. In the course of dealing with those grounds (in particular Ground 4), the primary judge noted that the appellant asserted that the Tribunal “unreasonably raised doubt” in relation to his asserted political opinion claims. The primary judge recorded that the appellant did not elaborate on any suggested legal unreasonableness and that his particulars were really directed to allegations about a misunderstanding or misconstruction of the facts by the Tribunal.
The primary judge held:
74.It has not been established that the Tribunal unreasonably raised doubt over the Applicant’s political opinion claims. The Tribunal considered, but did not accept, the Applicant’s claims about his political activism having regard to inconsistencies, the absence of meaningful information, his generalised, vague and uninformed responses about the BNP, its policies and coalition partners and the absence of documentary evidence. The Tribunal also made an adverse credibility finding based on significant inconsistencies and an absence of supporting evidence. However it accepted and considered the Applicant’s claim that he was a supporter of the BNP and that his father was a member.
75.If it is intended to be suggested that the Tribunal’s credibility findings were not open to it, while credibility findings are not immune from review (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [36]-[38]), this is not a case in which there is evidence to support any claim of legal unreasonableness or other jurisdictional error. The Tribunal’s findings in respect of the Applicant’s political opinion claim were reasonably open to it on the material before it for the reasons it gave.
76.The test for legal unreasonableness is stringent. It is well-established that if reasonable minds could differ as to the conclusions to be drawn from the evidence, then illogicality, irrationality or unreasonableness will not be established simply because one conclusion has been preferred to another possible conclusion (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]-[135] per Crennan and Bell JJ). The Applicant’s general assertion is not made out. It cannot be said that no rational or logical decision-maker could arrive at the same conclusion on the evidence before the Tribunal outlined above. Illogical or irrational reasoning, or other legal unreasonableness, is not made out in the Tribunal’s fact finding or in the ultimate conclusion, for which there was an evident and intelligible justification. Nor has the Tribunal’s reasoning been shown to be plainly unjust, arbitrary, capricious or lacking in common sense.
The primary judge found that none of the grounds pleaded in the first amended application were made out.
The primary judge then dealt with a complaint made by the appellant in oral submissions that he wanted to submit certain documents to the relevant Department, which the Department would not accept. He also complained that he was asked to provide evidence that he was unable to provide because of “the situation in Bangladesh”. The primary judge noted, however, that, at the end of the Tribunal hearing, the Tribunal gave the appellant the opportunity to provide any further information he wished to submit. The primary judge noted that the appellant did not suggest that he sought additional time to provide documents from Bangladesh. The primary judge was not satisfied that jurisdictional error had been established by reason of these complaints.
The primary judge then turned to deal with an issue identified as the “adjournment issue”. As this issue features in the appeal to this Court, it is convenient to set out the circumstances attending it, as found by the primary judge:
100.In oral submissions the Applicant claimed that during the Tribunal hearing he had wanted to go to the toilet, but the Tribunal member had not allowed him to go and had advised him that the hearing would end in 10 minutes. He claimed that in fact the Tribunal hearing had continued for another 40 minutes after he asked for a break.
101.The English language transcript provided by the Applicant records that towards the end of the hearing the Applicant, through the interpreter, asked if he could have a break for about five minutes, to which the Tribunal member replied that she was just about to finish the last question. However it is also apparent from the transcript that the hearing finished just under eight minutes later (not 40 minutes later, as the Applicant suggested to the court).
102.After this was clarified with the Applicant, he suggested that there was an interpreting problem and that he had told the interpreter that he had wanted to go to the toilet, but that this had not been translated by the interpreter for the Tribunal member. The hearing was adjourned so that evidence could be filed in relation to this and other new issues.
103.The Applicant filed and relied on an affidavit he swore on 28 September 2018. He attested that during the Tribunal hearing he needed to go to the toilet. He suggested that “the pressure of urine” was hindering his ability to give evidence. He attested that at the hearing he had sought a break and had also said that he needed to go to the toilet urgently as he had “drank too much water”, but that the interpreter did not translate this response. He claimed that the interpreter asked him if he could stay for another two to three minutes, to which he replied “I can”, which was also not interpreted. Annexed to this affidavit was a statutory declaration from a NAATI certified interpreter and translator and two partial transcripts including Bangla translations. The first interpreter explained that an annexed part of the transcript of the Tribunal hearing he had prepared (the first partial transcript) was not fully comprehensible, but that he had transcribed and translated that part of the recording to the best of his ability and understanding. There is no evidence from the interpreter who prepared and certified the second partial transcript of the same part of the hearing.
104.Both partial transcripts record that the Applicant stated (in Bangla) words to the effect of “I need a break of 5 minutes” which the interpreter translated as a request for a “5 minutes break”. The first partial transcript records a translation of the Tribunal’s response as: “... about to be finishing”, whereas the second partial transcript records the Tribunal stated “yes, I am just about to finish. That was the last question I had”. This was translated for the Applicant as “it’s nearly finished and this is the last question”.
105.The first partial transcript records that the Applicant then spoke, but that what he said appeared to be incomprehensible and that the interpreter said “can’t you hold/bear for 2, 3 minutes?”, to which the Applicant’s reply was also incomprehensible. The Tribunal then asked the Applicant about a medical certificate. The second partial transcript records that what the Applicant said at that point (in Bangla) was “I need to go to the toilet urgently to urinate as I drank too much water” and that the interpreter did not translate this for the Tribunal member, but asked the Applicant: “Can’t you hold it for 2 to 3 minutes?”, to which the Applicant responded “I can” (which was also not translated into English). The Tribunal then asked the Applicant about the medical certificate he had submitted.
106.The First Respondent did not dispute the accuracy of the second partial transcript.
107.Despite his ultimate response to the interpreter, the Applicant claimed to the court that thereafter he felt trapped and that he was compelled to give evidence that was incomplete as a result. He claimed that for these reasons he had not tried to explain himself further to the Tribunal or to contest any adverse information raised by the Tribunal during the hearing.
The primary judge considered the adjournment issue from a number of perspectives.
First, the primary judge rejected any suggestion that the interpreter’s failure to fully translate the appellant’s request for a break meant that he was deprived of a real and meaningful hearing under s 425 of the Act.
The primary judge found that the appellant’s request was made about eight minutes before the end of the hearing, after all the appellant’s claims had been extensively canvassed. The appellant had been afforded (and had taken) “multiple opportunities” to respond to or contest the adverse information that had been put to him. At the time the Tribunal had indicated that it was about to finish the last question it had, there was no subsequent discussion of credibility, and no adverse information was to put to the appellant. There was only a brief discussion of medical evidence he had provided in relation to his claim about being shot.
In this connection, the appellant was afforded the opportunity to provide further medical evidence to support his claimed injury, and any other information he wished to submit after the hearing. The appellant was also given the opportunity, at the end of the Tribunal hearing, to add anything that he wished to say. He took that opportunity and made various statements about why he wished to remain in Australia. At no stage did the appellant indicate to the Tribunal (at the hearing or thereafter) that he did not consider that he had had sufficient opportunity to express himself orally or that he had given incomplete evidence.
Further, at the hearing before the primary judge, the appellant did not explain what submission he would have made, or what information he would have provided, to the Tribunal had he been afforded the short break he was seeking.
In all the circumstances, the primary judge concluded that the interpreter’s failure to fully interpret the appellant’s request did not relate to a matter of such significance that could materially affect the decision which the Tribunal gave. As the primary judge put it:
116.I am not satisfied that the limited failure to translate the reason the Applicant sought a five minute break (and his response that he could wait for two to three minutes) some eight minutes before the end of the hearing (after he had been afforded an extensive opportunity to give evidence and to comment on adverse information and the Tribunal’s credibility concerns) was such as to deprive him of a fair hearing, particularly given the opportunity afforded to him to send the Tribunal any further information he wished to submit. I have considered the fairness of the hearing as a whole. The Applicant had a reasonable opportunity to be heard. The non-translation did not relate to the Applicant’s “version of events”. The limited failure to translate has not been shown to have materially affected any findings of fact made by the Tribunal. Nor am I satisfied that it was (in the circumstances at the time at which it occurred) a potentially material error of substance such that it could have affected the outcome of the review in a real way (see SZRMQ at [10] and [69]). In all the circumstances of this case, it has not been established that the failure to translate complained of affected the decision in a real way, deprived the Applicant of a fair decision-making process or was such that the process miscarried. No jurisdictional error has been established based on the failure by the interpreter to translate the two responses of the Applicant recorded in the second partial transcript of the Tribunal hearing.
Secondly, the primary judge considered whether the Tribunal’s decision to refuse a short break was, in effect, a decision, which was legally unreasonable, to refuse an adjournment. The primary judge was not persuaded that there was any legal unreasonableness:
118.In this case the Tribunal was not told of the claimed urgency of the Applicant’s need for a five minute break. The Tribunal member explained to the Applicant why she wished to press on, as she was just asking her last question. It is apparent from what occurred thereafter that, as the Tribunal had indicated, the hearing was in fact in its closing stages. There was an evident and intelligible justification for the Tribunal’s decision to proceed to finish the hearing, in light of what it understood had been said by the Applicant and the stage of the hearing at which the request was made (see Li at [76]). Even if reasonableness should be assessed in light of both of the Applicant’s untranslated responses, the hearing was about to finish, there was no further matter of significance to be raised with the Applicant and he was afforded the opportunity to provide further submissions or information after the hearing. Even if another decision-maker may have allowed the Applicant a break, the material before me does not establish legal unreasonableness in relation to the Tribunal’s refusal to grant the Applicant a short adjournment at that stage of the hearing.
The primary judge then turned to consider the application of s 424A of the Act in circumstances where, as I have said, the appellant did not respond to the Tribunal’s written invitation (made through the appellant’s then appointed representative) to comment on certain information: see [4] above.
Although the appellant raised no ground concerning s 424A in any of his applications, in oral submissions he told the primary judge that he had, in fact, submitted a written response to the Tribunal’s invitation. This led to an adjournment of the hearing before the primary judge because the appellant provided no evidence of any such response and the time was taken for the solicitor for the Minister to make enquiries as to whether there was any response by the appellant on the Tribunal’s file. Evidence was subsequently adduced by the Minister that no response had been received by the Tribunal to its invitation and that the Tribunal’s decision was made over a month after the date set for a reply. The adjournment also provided the appellant with the opportunity to obtain evidence as to whether a response was made and, if so, the nature of that response. No evidence was forthcoming from the appellant on those matters.
For these reasons, the primary judge was not satisfied that it had been established that the Tribunal failed to consider any comment or other material provided in response to its invitation under s 424A of the Act.
After it became clear that there was no evidence that the Tribunal had received any response to its s 424A invitation, the appellant made an assertion that, knowing of the invitation that had been made, he tried to submit documents to the Tribunal through a person identified in the primary judge’s reasons as “TP”, whom the appellant believed to be a lawyer and registered migration agent. The appellant’s complaint (to the primary judge) was that TP failed to respond to the s 424A invitation on his (the appellant’s) behalf even though the appellant supplied TP with a number of documents, none of which the appellant adduced in evidence or could describe in any meaningful detail. The issue raised was third party fraud on the Tribunal.
The appellant’s belated claim in this regard resulted in a further adjournment of the proceeding before the primary judge. He was given the opportunity to adduce further affidavit evidence on this issue. As a result, the appellant filed two affidavits, one by himself and one by another to whom the primary judge referred as “the friend” (having regard to the prohibition in s 91X(2) of the Act).
The primary judge summarised, in detail, this further evidence, including the appellant’s and the friend’s subsequent cross-examination on it. The primary judge noted a number of inconsistencies in the appellant’s evidence, as well as it incomplete nature.
In the end, the primary judge was not satisfied that the appellant had established a case of fraud on the Tribunal. Her Honour held:
152.There is a heavy burden on an applicant alleging fraud on the Tribunal (see SZRUR at [51]). It has not been met in this case. A finding of fraud against an individual who is not a party to the proceedings should not be made lightly or based on mere inference or supposition. The Applicant has failed to identify with any particularity what he says this person was supposed to have submitted to the Tribunal. The Applicant’s vague evidence about what was to be provided to the Tribunal has not revealed how such information could have made any material difference to the Tribunal decision. He did not have copies of the documents in question, of any of his communications with TP or any documentary evidence of TP’s identity or name. He now says he is unable to contact TP.
153. Even if the Applicant gave a third party documents (which he is now not able to describe clearly) and expected him to provide those documents and make a response and submission to the Tribunal, a finding that the third party agreed, but failed, to send a response and documents to the Tribunal would depend on an inference from the Tribunal’s failure to receive any such response. Even if it were appropriate to draw such an inference (which, in my view, it is not), there is nothing in the evidence before the court to establish that any such failure went beyond an oversight or negligence on the part of the third party. As stated in SZLIX at [33], “bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal”. There is insufficient evidence to indicate to the requisite Briginshaw standard (see SZLIX at [33]) that the third party acted dishonestly or that there was other conduct on the part of the third party which amounted to fraud on the Tribunal directly affecting the discharge of the its statutory functions in the sense considered in SZFDE (cf. DUA16).
Finally, the primary judge considered the consequences of the certificate that had been issued under s 438 of the Act by a delegate of the Minister on 5 November 2014. The certificate related to information in five folios in a Departmental file.
The primary judge identified the information in these terms:
168.The first document the subject of the s 438 certificate is a copy of an email of 9 July 2013 to a departmental officer from a Red Cross caseworker in relation to three clients (including the Applicant) staying at a hostel in Tasmania. The caseworker asked whether care plans should be resubmitted to request cover for an extension of their stay (on the basis of exceptional circumstances) to allow them to see a lawyer on scheduled dates. The reply of 9 July 2013 to this email from a departmental Senior Case Manager addressed the requirement of exceptional circumstances and recorded the understanding that these “clients” would be covering the costs of their extended stay. An email from the Red Cross of 15 August 2013 addressed a request for approval of payment of the costs of a bond and rent advance and a tenancy agreement for the Applicant. An email of 16 August 2013 from the Department recorded approval of a bond and rent in advance loan to the Applicant under the Asylum Seeker Assistance Scheme. An email of 21 August 2013 from the IAAAS Community Detention Co-ordinator advised the Department of the Applicant’s new address in New South Wales.
The Minister accepted that the certificate was invalid because it did not show, on its face, a basis for certifying that the disclosure of the information was contrary to the public interest. The Minister nevertheless submitted that no jurisdictional error was involved because, having regard to the nature of the information, no practical injustice to the appellant could have resulted.
The primary judge found that none of the documents had any relevance to any issue before the Tribunal.
Further, the appellant had not identified what, if any, submission he could have made in relation to the certificate or the information the subject of the certificate had he been informed of the notification. The primary judge remarked that, absent the appellant identifying a possible submission, it was not apparent what he could have said in the circumstances.
Further, the primary judge reasoned that it could be inferred that the Tribunal did not have regard to the information in reaching its decision.
The primary judge held:
171.… it has not been established that any breach of procedural fairness or the fact of the invalid notification in any way gave rise to a practical injustice, whether in denying an opportunity to the Applicant to make submissions or otherwise. The information in the documents the subject of the certificate could not have had any material impact on the issues on the review as it lacked any connection to the Applicant’s claims. Neither the invalid notification or the failure to inform the Applicant could have affected the outcome of the review. The Applicant was not denied an opportunity to make submissions on any matter that could “realistically” have made any “difference” to the outcome of the Tribunal decision. Materiality of the breach in the sense considered in SZMTA at [45]–[48] has not been established. Hence no jurisdictional error has been established in this respect.
GROUNDS OF APPEAL
Grounds 1 and 5
Ground 1 of the notice of appeal is expressed as follows:
1.The Appellant had a real fear of persecution upon returning to his country of origin has deteriorated by the Second Respondent without any reasonable fortitude, the trial judge erred by not finding that the Second Respondent unreasonably denied that the Appellant will face brutal oppression.
This ground is, in substance, an allegation that the primary judge erred in not finding that the Tribunal’s decision was unreasonable insofar as the Tribunal “denied” that, if returned to Bangladesh, the appellant will “face brutal oppression”.
On analysis, this appears to be a generalised allegation that the Tribunal’s decision to affirm the delegate’s decision not to grant the appellant a protection visa was legally unreasonable and that the primary judge erred in not making a finding to that effect. At a higher level of abstraction, this ground might simply be canvassing the merits of the Tribunal’s decision, as the Minister contends.
The appellant’s written outline of submissions assist in giving content to this ground. The submissions affirm the correctness of certain of the appellant’s factual claims that he had made to the Tribunal. They canvass, and appear to take issue with, certain of the Tribunal’s findings of fact.
The appellant’s submissions also contend, without elaboration, that:
It was not open to the Tribunal to make adverse credibility findings and Tribunal’s reasoning process irrational, illogical and made findings without evidence. The Tribunal decision legally unreasonable.
It is convenient to consider, in conjunction with Ground 1, Ground 5 of the notice of appeal, which is expressed as follows:
5.The Second Respondent erroneously rejected the Appellant’s claims and the trial judge analysed very briefly but erred in paying weight.
Ground 5 does appear to challenge, squarely, the merits of the Tribunal’s decision. It also appears to allege that the primary judge erred in not coming to a different view as to the merits of the appellant’s claims. If this be so, Ground 5 misconceives the role of the Federal Circuit Court in undertaking judicial review.
Although the appellant raised a number of grounds of judicial review in his pleaded allegations in the Federal Circuit Court, legal unreasonableness was not one of them. However, as I have noted, the primary judge addressed aspects of legal unreasonableness where her Honour considered it appropriate to do so in dealing comprehensively with the appellant’s case as it developed before her.
I am not satisfied that Grounds 1 and 5 of the appeal are established.
The appellant’s allegations of legal unreasonableness appear to be premised on the contention that the Tribunal should have accepted, and acted upon, his account of why he fears harm if returned to Bangladesh. In other words, his case on unreasonableness is founded on, and takes issue with, the Tribunal’s non-acceptance of the truth and accuracy of his account of the facts and of his claim to fear harm because of his political opinions. In this way, Grounds 1 and 5 converge and are, in substance, an impermissible challenge to the Tribunal’s findings of fact.
To the extent that Ground 1 raises legal unreasonableness, I am not satisfied that the primary judge erred in not finding that the Tribunal’s decision was unreasonable as a matter of law.
The primary judge gave detailed consideration to the Tribunal’s reasons and the appellant’s submissions in respect of those reasons. Her Honour comprehensively addressed the grounds of judicial review as the appellant chose to advance them. Her Honour identified unreasonableness as a possible ground of judicial review, but rejected that ground for the reasons I have quoted above at [12].
The simple fact is that the Tribunal did not accept the appellant’s political opinion claims in their entirety, including because it did not accept that the appellant had provided a credible account of his experiences in Bangladesh. The primary judge’s analysis and conclusion was that the Tribunal’s findings were open to it on the evidence before it, including its findings concerning the appellant’s credit. No error has been shown in the primary judge’s finding in this regard.
Ground 2
Ground 2 of the notice of appeal is expressed as follows:
2.The Appellant was falsely assured by a de-registered Migration Agent that all of his corroborative evidences and reply of the 424A information would be submitted to the Second Respondent but failed. This failure is an issue in attaining procedural fairness and the Appellant deprived in attaining it.
This ground concerns the primary judge’s findings in respect of the appellant’s allegation of fraud on the Tribunal.
The framing of this ground as a denial of procedural fairness by the Tribunal is inapposite. As I have noted above, the appellant’s complaint concerns material that he alleges was not provided to the Tribunal for its consideration, when such material should have been provided. It cannot be contended that the Tribunal itself denied the appellant procedural fairness by not addressing material it clearly did not have.
It is not in doubt that a remedy in public law is available to an applicant who contends that he or she has been the innocent victim of fraud by a third party and is able to show that the fraud stultified a process or processes under the Act: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 258 FCR 1 at [78]. However, for the reasons given by the primary judge, the appellant’s case of fraud on the Tribunal was not made out.
The allegation of fraud on the Tribunal was comprehensively considered, but rejected, by the primary judge. I discern no error in her Honour’s analysis or conclusion. The appellant’s submissions do no more than cavil with her Honour’s conclusion.
Ground 2 is not established.
Ground 3
Ground 3 of the notice of appeal is expressed as follows:
3.The Appellant hearing ability was disrupted not providing an opportunity for a break during the hearing by the Second Respondent. The Second Respondent made an error not providing service with efficiently, accurately and the Appellant failed to attain natural justice.
This ground concerns the “adjournment issue”. Once again, this matter was comprehensively considered by the primary judge. The appellant’s submissions simply recite that he was “denied an opportunity to go to the toilet” and that he “felt uncomfortable”.
I discern no error in her Honour’s analysis or her conclusion that the appellant was not deprived of a real and meaningful hearing or denied the opportunity to put material or information before the Tribunal simply because he was not afforded a short adjournment, or that the failure to grant a short adjournment manifested legal unreasonableness on the part of the Tribunal.
Ground 3 is not established.
Ground 4
Ground 4 of the notice of appeal is expressed as follows:
4.Section 438 certificate heavily influenced the Second Responded and it has affected the decision of the Second Respondent and it raised a jurisdictional error and the trial judge erred in this issue.
The appellant submitted that he seeks the “Court’s hand to resolve this ground”. Once again, the primary judge comprehensively considered the implications of the s 438 certificate that had been issued. I discern no error in her Honour’s analysis or conclusion that the documents were not relevant to any issue considered by the Tribunal and could not, realistically, have made any difference to the outcome of the Tribunal’s decision.
Ground 4 is not established.
CONCLUSION
None of the grounds of appeal have been established. The appeal will be dismissed with costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. Associate:
Dated: 9 June 2023
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