ACZ17 v Minister for Immigration and Border Protection

Background 5 The appellant, who is a citizen of Bangladesh, arrived in Australia on 3 January 2013. 6 He was born on 1 January 1990 in Bangladesh. He had ten years of schooling which he completed in December 2006. He apparently left Bangladesh on 20 July 2007 and went to Malaysia where he lived unlawfully until November 2012. During that period he worked as a tailor. 7 The foundation of his claims for a protection visa were, as the primary judge found, accurately set out at paragraph 7 of the Minister's submissions to that Court. They were adopted by the learned primary judge and were as follows: 7. The applicant claimed to fear harm in Bangladesh on account of his relationship with a girl named Lipa whose family supported the Awami League (AL), his actual or imputed support for the Bangladesh National Party (BNP), his conversion to Christianity, because his details were released in a data breach and because he will be perceived to be wealthy as a returnee from the west. In support of those claims, the applicant recounted the following factual events: (a) when Lipa's brother found out about her relationship with the applicant, he beat the applicant and threatened to kill him; (b) Lipa's family arranged for her to marry another man but she asked the applicant to elope with her instead; (c) they were caught by Lipa's brother, who beat the applicant with a stick and held him captive until after Lipa's wedding took place; (d) a week after the wedding, Lipa killed herself; (e) Lipa's family blamed the applicant for her death and threatened to kill him, so the applicant fled to Dhaka and later on to Malaysia; (f) in 2004, one of the applicant's brothers was killed while in the company of a BNP supporter; (g) in 2008, the applicant's other brother was killed in an altercation when Lipa's family and their associates tried to seize the applicant's family's land in order to force them to reveal the applicant's whereabouts; and (h) the applicant became interested in Christianity while in detention, was baptised on 3 June 2014, and his parents are very upset about his conversion. (Emphasis in original) 8 The appellant's application for a protection visa was refused by the Minister on 21 April 2015. He applied for a review of that decision to the Tribunal which conducted a hearing on 18 October 2016. On 14 December 2016 the Tribunal affirmed the Minister's decision. In essence it was not satisfied of the veracity of the appellant's claims. It made adverse credibility findings in relation to the appellant and his narration of the events on which he founded his asserted fear of harm or persecution. In particular: (a) It did not accept he was a BNP supporter or that he had any interest in or involvement with the BNP. It was apparent that he had little political knowledge about the activities of the BNP. (b) It was accepted that one of the appellant's brothers had been killed in 2004 whilst in the company of a BNP supporter, however, the Tribunal did not accept that he would face a risk of serious harm for this reason. (c) The Tribunal found that the appellant's claim to have been in a relationship with a girl called Lipa was not credible. His evidence of the relationship was vague, contradictory, implausible and inconsistent. (d) On the basis of the rejection of his claimed relationship with Lipa, the Tribunal also rejected the assertion that his brother was killed in a conflict with Lipa's family or that Lipa's family had tried to seize his family's land or that he or his family had been threatened or harmed by Lipa's family (e) The Tribunal also did not accept the appellant had genuinely converted to Christianity or had any interest in converting or practising that religion. It found his knowledge of the religion or its practice was vague at best. (f) The Tribunal also rejected the claim that information about the appellant had been released in a data breach. (g) The Tribunal accepted that the appellant had been baptised, had attended baptism and confirmation classes whilst in immigration detention and had occasionally attended church in Australia. However, it disregarded this conduct pursuant to s 91R(3) of the Migration Act 1958 (Cth) (the Act) because it was not satisfied he had engaged in it otherwise than for the purpose of strengthening his claim to be a refugee. (h) On the basis of Country Information the Tribunal found there was no evidence to support his claim he would be perceived to be a wealthy returnee from the west were he to go back to Bangladesh. 9 For the above reasons the Tribunal determined the appellant did not satisfy the refugee criterion in s 36(2)(a) of the Act and nor did he satisfy the Complementary Protection provisions in s 36(2)(aa). 10 The grounds raised before this Court are not the same as those raised before the Federal Circuit Court. There is also a lack of conformity between the grounds raised in the Notice of Appeal and the matters raised in the Outline of Argument. Given that the latter appears to relate to the issues of the case they ought be considered as the claims now being advanced. 11 Necessarily, it follows the appellant now seeks to raise grounds of appeal which were not agitated before the FCC. The principles in relation to exercising a discretion to allow a party to agitate new grounds of appeal were identified in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, 598-599 at [46]-[48] where the Full Court said: In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 12 In this case there is no explanation as to why the grounds now sought to be agitated were not advanced to the Federal Circuit Court. Despite that, it is appropriate to consider whether any of the proposed new grounds have any merit which ought to warrant their consideration on an appeal proper. There is no apparent prejudice to the Minister in the appellant raising these grounds at this stage and the Minister has provided substantial written submissions in relation to them.

The grounds generally 13 It should be noted that the grounds of appeal and the supporting written material are extremely vague. At best, they make generalised assertions of error by the Tribunal and the primary judge. It is difficult to discern exactly what it is that the appellant seeks to argue and the identified "grounds" below are what might be anticipated to be the matters on which the appellant relies.

Ground one 14 The first ground of appeal agitated in the written submissions is identified as a denial of procedural fairness arising by the manner in which the Tribunal hearing was conducted. This ground may reflect the fourth ground agitated by the appellant before the FCC and if so leave would not be required to advance it. 15 However, it has no merit. It amounts to no more than the appellant's disagreement with the conclusions reached by the Tribunal as to his lack of credibility and, in particular, the lack of persuasiveness of his claim that he would be targeted by the Awami League because he was a supporter of BNP. He complains that the Tribunal relied upon his lack of understanding of BNP politics, but asserts he was not educated, was out of the country for a long time, that he had difficulty in understanding the questions which were being put to him and the interpreter did not properly interpret. 16 There is no evidence to support the latter two complaints. They are just assertions by the appellant and do not found any ground of appeal. 17 In relation to the Tribunal's conclusion as to the appellant's lack of knowledge of BNP politics, it observed that he knew very little about the BNP or his claimed activity and support for it. Whilst he had spoken of going with senior people to meetings which were organised every two, or three, or six months, when asked about the meetings he simply said that he would go and listen and could offer no further details. He did not give any reason as to why he would be a BNP supporter other than stating they did good things. He was not able to articulate any BNP programs, policies or goals that he had adhered to or admired. He could offer no explanation why, as a Christian, he would support an Ismailist based party. 18 The concerns identified by the Tribunal naturally give rise to great concern about the veracity of the appellant's claim to be a BNP supporter. That being so there is an evident and intelligible justification for the conclusion which was reached in relation to his claims: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, [10] per Kiefel CJ. The Tribunal's conclusion from the facts as identified could not be said to be irrational or unreasonable. Given the matters raised by the Tribunal, it is unsurprising that it concluded his claim to be a BNP supporter was found to lack credibility. 19 The appellant complained that the Tribunal acted illogically and unreasonably in expecting him to have a mastery of the policy of the BNP. That, however, was not a conclusion reached by the Tribunal. It was that he was unable to demonstrate any relevant knowledge of the BNP which might suggest that he was, in fact, a supporter. 20 Under this claim of a denial of natural justice, the appellant also complained that the Tribunal did not believe that he had a relationship with a girl called Lipa. However, the Tribunal's conclusion with respect to the evidence concerning his alleged relationship with Lipa strongly supported its conclusion that no relationship existed. As to the nature of the relationship the Tribunal found: The applicant provided a very brief and vague description of Lipa. His evidence about how the relationship developed and how they would meet also lacked coherency. He initially stated that they met in secret, but when asked to provide details he then changed his evidence to state they met publicly in a school yard with other students around. As described by the applicant they had very little time together, having to speak quickly when they were close to the other's side of the school ground or at water taps. Given this evidence the Tribunal considers they had almost no time to develop a relationship or to even get to know anything substantial about each other. As described by the applicant the relationship consisted of just occasional brief and fast comments to each other in the midst of other students. The applicant's evidence was further inconsistent when he later stated that he and Lipa met in many places, many times. When the Tribunal tried to explore with him where the many places were, he again changed his evidence to state that they would just meet sometimes on their way to school or coming back from school. 21 The inconsistent and wavering evidence, taken at its highest, can only suggest a passing acquaintance with the person identified as Lipa. Moreover, the Tribunal found it incredulous that a boy of 16 or 17 would pursue a relationship as he claimed amid threats of beatings and the like. It also pointed to inconsistencies in the timeline presented by the appellant in relation to when he was attacked by Lipa's family. 22 The conclusion that no relationship existed with Lipa underpinned the subsequent conclusion that the appellant's brother was attacked and killed by Lipa's family a year after the appellant departed from Malaysia. 23 Again, the allegation that the conclusions of the Tribunal were unreasonable cannot be sustained. There was an evident and intelligible justification for the conclusion reached based upon the facts as found by the Tribunal. 24 The appellant also appeared to raise the suggestion that the Tribunal made its decision with a closed mind and based on presumption. This appears to be the expression of a grievance that the Tribunal did not give evidentiary weight to his oral or written material. However, the Tribunal reached a conclusion that the appellant had not established the facts on which his claim was based because it disbelieved the appellant's evidence. That conclusion was open on the facts as found and no error arises in this respect. 25 The written submissions also alleged that the Tribunal failed to give him an opportunity to explain his arguments. There is no evidence that such was the case. It is apparent from the summary of evidence that the appellant substantially explained his case during the course of the hearing before the Tribunal. This ground must also fail.

The second ground 26 The appellant also claimed that he was denied procedural fairness because the Tribunal hearing was not conducted freely and fairly. He said the Tribunal failed to understand the difficulties and circumstances of non-legal persons appearing before a Court or a Tribunal. 27 It suffices to say that there is no evidence to support these assertions. The Tribunal is experienced in dealing with unrepresented litigants and in fact, in migration matters it is a common experience. The appellant did not identify any argument or ground which the Tribunal failed to assess or consider. 28 This ground, along with grounds 2, 3 and 4 of the Notice of Appeal, seem also to raise an argument that the appellant was prejudiced and did not obtain a fair hearing by reason of the standard of interpretation services provided by the Tribunal. Although this was not a ground advanced before the primary judge, the appellant did say that he did not properly understand the interpreter provided. In any event, the appellant did not adduce any evidence before the primary judge, or before this Court, which suggests that the translation services provided were not reasonable or sufficient to allow him to have a fair hearing. In the absence of relevant evidence this ground of appeal cannot be made out. To the extent to which this ground was not argued before the primary judge, leave would be needed to raise it in this Court and, because it cannot succeed, such leave should be refused. 29 In his material the appellant claimed the Tribunal contravened ss 424A and 425 of the Act in relation to the manner in which the hearing was conducted. To the extent to which by this ground it is suggested that clear particulars of "adverse material" were not provided, the appellant did not identify the relevant adverse material. The primary judge was not able to identify any and the appellant has not shown where the primary judge was in error in this respect. To the extent to which it is alleged that s 425 was not complied with, it is apparent that the Tribunal did invite the appellant to a hearing to give evidence and present arguments relating to the issues arising in respect of the decision under review. The appellant accepted the invitation and opportunities accorded to him. The reasons show that s 425 was complied with and the primary judge made no error in concluding that was so.

The third ground 30 It appears that a further ground of appeal is that the Tribunal did not take account of the appellant's claimed conversion from Islam to Christianity. However, from [39] to [46] of its reasons the Tribunal deals extensively with his claimed conversion to Christianity. After a thorough analysis of the evidence which the appellant gave of his knowledge of Christianity the Tribunal determined that it did not accept he had converted to the Christian religion or that he had any interest in converting to Christianity or practising Christianity. It follows that the Tribunal did take into account his claimed conversion to Christianity. The difficulty for the appellant is that it did not believe him.

Ground four 31 The appellant complained that the Tribunal asked several irrelevant questions about his changed religion to undermine and confuse him during the hearing. 32 There is no evidence of this and none are identified. As the primary judge observed in his reasons, the appellant did not identify any irrelevant questions nor why any of the questioning by the Tribunal was irrelevant or confusing. The questions asked of the appellant, which are recorded in the Tribunal's reasons from [39] to [46], were relevant and pertinent to the appellant's claimed conversion. The Tribunal was entitled to question the appellant in order to test the veracity of his claims and the evidence he gave. The primary judge correctly concluded that no error arose from the manner in which the questions were asked of the appellant.

Ground five 33 The appellant also claimed the Tribunal was biased in reaching its conclusion as to his claimed conversion to Christianity. 34 The allegation of bias is a serious matter and one which ought to be identified clearly and squarely. There is nothing in the written submissions which advances the mere assertion of bias. The appellant has failed to identify anything which might suggest that the Tribunal did not bring a mind open to persuasion to his case and was therefore actually biased against him: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [71]. Similarly, there was nothing which might cause a fair-minded lay observer to reasonably apprehend a lack of impartiality with respect to the decision to be made: Isbester v Knox City Council (2015) 255 CLR 135 at 146 [20]. The appellant did not point to any facts which might support a finding to this effect. 35 The real nature of the appellant's concern appears to be that he is dissatisfied with the Tribunal's findings of credibility in relation to him and his evidence and, because the Tribunal found that he lacked credibility, it must have been biased. However, apart from making the assertion of bias he failed to point to any material from which it might be discerned. The reasons as to why the Tribunal disbelieved the appellant are set out in its reasons and the facts found support its conclusion. 36 There is nothing to suggest that the Tribunal was biased against the appellant and, to the extent to which this is the issue dealt with at paragraph 22 of the reasons of the primary judge, he was right to reject it.

Ground six 37 Under this ground the appellant claims that there was an insufficient logical or evidentiary connection between the Tribunal's assessment of his credibility and the material on which it relied. Whilst some authorities are referred to no facts are identified which suggests the Tribunal made any error in the assessment of his credibility. 38 As has been indicated above, the Tribunal's determination as to the implausibility of the facts advanced by the appellant had a rational and logical basis to them. The central element of the appellant's case was his relationship with a young woman called Lipa. However, the facts and circumstances surrounding that relationship were so vague and inconsistent the Tribunal was entitled to find no such relationship existed. The fact that it was advanced by the appellant was demonstrative of his lack of credibility.

Ground seven 39 The document referred to as an Outline of Submissions also makes an allegation that there had been a failure by the Tribunal to correctly consider the Complementary Protection provisions in s 36(2)(aa) of the Act. The appellant's complaint appears to be the Tribunal misapplied the correct test under s 36(2)(aa) or made an unreasonable decision or failed to give reasons in considering the Complementary Protection provisions and took an "unduly harsh approach" in its application. This ground was not agitated before the primary judge and leave would be required to consider it now. Such leave should not be granted because, inter alia, it has insufficient merits to warrant such leave being given. 40 It is clear from the Tribunal's reasons that it made factual findings in respect of the appellant's claims as advanced to it. After dealing with the Convention provisions it then applied those findings and considered them in the context of determining whether there was a real chance or risk that the appellant would suffer either serious or significant harm if he were returned to Bangladesh (see particularly [51] to [65] of the Tribunal's reasons). It concluded that there was no real risk of any significant harm were he to be returned to the receiving country. The appellant has identified no error in that conclusion and none appears from the articulation of the Tribunal's reasons. 41 To the extent to which the appellant claimed the findings of the Tribunal were "unduly harsh", such a submission is an attempt to invite the Court to engage in merits review of the decision. That of course is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It follows that no ground of review arises from this submission.

Ground eight 42 A ground of appeal which appears in the Notice of Appeal is to the effect that the primary judge erred in not finding that the Tribunal fell into error, by failing to take into account relevant considerations by not reviewing the delegate's decision and making its decision based on irrelevant facts and findings. In broad and general terms this ground was advanced before the primary judge, however, as here, no particulars of the ground were identified. The primary judge nevertheless grappled with the ground and indicated that a reading of the Tribunal's reasons discloses that it did assess the material before it and the grounds advanced by the appellant and it appears to have taken into account all of the relevant considerations required of it. To the extent to which it is alleged that irrelevant considerations were taken into account, none are specified by the appellant and there is nothing on the face of the reasons of the Tribunal to suggest that occurred. No discernible error arose from the above issues and the primary judge was correct in rejecting this vague and general ground.

Conclusion 43 It follows from the above consideration that nothing in the appellant's Notice of Appeal or his written submissions discloses any ground of error on the part of the Tribunal or of the learned judge below. 44 It follows that the appeal must be dismissed and the appellant must pay the Minister's costs of the appeal. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.