AEX15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellants 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.

O'CALLAGHAN J: 1 On 25 July 2017, I granted the appellants leave to appeal, limited to one point, from a decision of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review under r 44.12 of the Federal Circuit Court Rules 2001 (Cth): see AEX15 v Minister for Immigration and Border Protection [2017] FCA 821. Following the grant of leave, I also referred the appellants for legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth). 2 For the reasons that follow, having heard argument on the point, including from pro bono counsel for the appellants, Mr B C Dean, the appeal must be dismissed. 3 The appellants are a family of five; AEX15 (the first appellant) and his wife, AEY15 (the second appellant), and their two children, AEZ15 and AFA15 (the third appellant and the fourth appellant, respectively). 4 The first appellant is a fish farmer who claims to have a well-founded fear of persecution, for the purpose of s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), by reason of his political opinion and membership of particular social groups, namely, the family unit of members of the Bangladesh Nationalist Party (BNP), businessmen with BNP affiliations and persons associated with the BNP facing extortion. He claims to be at risk of suffering significant harm, for the purposes of s 36(2)(aa) of the Act, on the basis of the same factual substratum. The second to fourth appellants' claims are made on the basis that they are members of the same family unit as the first applicant. 5 The first appellant claims to have been involved with the BNP, as a supporter and member, since 1992. He claims that is from a BNP family, with a father who has been actively involved in party politics and an uncle who has held several prominent positions of power within the party. He further claims to have himself been in a position of power within the party, as the Secretary of the Jubo Dal (the youth wing of the BNP) for Jalalabad in 2008. 6 The first appellant claims to have suffered relevant harm prior to leaving Bangladesh on two occasions. On the first occasion, he says that members and supporters of the Awami League (the rival party of the BNP and the ruling party in Bangladesh) forcibly entered his fish farm, assaulted a security guard and killed all of the fish with poison. On the second occasion, the first appellant says that he was physically assaulted and threatened on his way to a market, which resulted in him losing consciousness and being hospitalised. 7 I do not propose to rehearse the proceeding before the then Refugee Review Tribunal (the Tribunal) and the FCCA. I did so in detail on the hearing of the leave application: AEX15 v Minister for Immigration and Border Protection [2017] FCA 821 at [6]-[19]. 8 The single point upon which leave was granted was the question whether the primary judge erred by not finding that the Tribunal erred in its treatment of the appellants' documentary evidence, being the evidence referred to at [65] and [190] of the Tribunal's reasons. 9 Those paragraphs of the Tribunal's reasons are as follows (errors in original): [65] The applicant's letter from the BNP submitted to the Department was obtained by his brother who requested it as the applicant did not speak to anyone about it. It refers to the applicant being an executive of No. 1 Jalalabad Union. The applicant at his second hearing explained that there are eight unions in his upazilla. The letter indicates that Jalalabad Fishery owned by the application was positioned. It claims his family have been threatened. It claims he was in hospital for four days. The letter is replete with grammatical and spelling errors and relates the applicant being "completely in apprehension of killing. Prior to the primary decision, the applicant had provided a letter from one Mr Choudhury from the Chhatradal. It refers to the applicant being 'general secretary of Bangladesh Jatiyotabadi Jubodal no. 1 Jalalabad Union Branch, Sylhet, Bangladesh. His conduct and character are good.' Although relating to his "Jubadal position it is on Chhatradal letterhead. Attached was an affidavit by one Mr Miah, the applicant's uncle's positions and defeat after a claimed five terms as Chairman. The letter indicates "Specially after defeating my Union parishad election in 2011 A.D. the ruling party Awamileague and their terrorists was attached Mr. Daud Ahmed and his family." … [190] The Tribunal does not accept the documents as submitted by the applicant to be genuine or reliable given its finding that he is not affiliated with the BNP. Further, the letters contains irregularities are self-serving, and make reference to the applicant lodging a protection visa application in Australia. They are filled with typographical, spelling and grammatical errors and contain information at odds with the applicant's evidence in relation to his claimed affiliation with the BNP. It finds that these documents are not genuine or reliable and gives them no weight. 10 As I said in AEX15 v Minister for Immigration and Border Protection [2017] FCA 821 at [50]: In Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 (SZNSP), the Full Court considered S20/2002, WAIJ and SZNPG in the context of the Refugee Review Tribunal's refusal to give weight to a purportedly corroborating witness statement from a person not called to give evidence before that tribunal, following a finding that the visa applicant had fabricated her claims. Relevantly, North and Lander JJ held (Katzmann J agreeing) that: (1) It is not a precondition to the exception identified by McHugh and Gummow JJ in S20/2002 that a person tendering corroborative material be found to have lied: SZNSP at [30]. Even if such a finding is a precondition, a finding that the visa applicant had fabricated her claims was tantamount to a finding that she had lied: SZNSP at [32]. (2) It was open to the Refugee Review Tribunal to assess the credit of the visa applicant and then, in light of that assessment, consider what weight should be given to the witness statement. Their Honours observed that, although expressed in the most "cryptic" terms (the Refugee Review Tribunal noting only "[g]iven the adverse credibility finding, the Tribunal does not give weight to the document"), the Refugee Review Tribunal assessed the value of the witness statement and considered its effect in light of the view it had formed to that point of the visa applicant's evidence: SZNSP at [33]. (3) It was open to the Refugee Review Tribunal to conclude that, in view of all of the evidence, no reliance was to be placed on the witness statement, because "it was not corroborative evidence at all" in the absence of proof of the provenance of the document and the reliability of the author: SZNSP at [35]; see also SZTQZ v Minister for Immigration and Border Protection [2017] FCA 282 at [26] per Jessup J. (4) Where a decision-maker, having conducted a hearing during which the applicant has been heard, reaches a tentative conclusion that the applicant's claims have been fabricated, the decision-maker is entitled to reject evidence which would have, if accepted, corroborated the applicant's account. Whether the evidence can be rejected depends on the nature, content and quality of the corroborative evidence: SZNSP at [36]. 11 Having had the benefit of argument on the point, it is clear that the Tribunal's reasons disclose no appellable error. As counsel for the Minister correctly submitted: Contrary to what is suggested in the Appellant's submissions, the Tribunal did not need rebutting evidence before rejecting the Appellant's claim to be a member of the BNP: see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [65]. Its finding that he was not affiliated with the BNP was open for the reasons the Tribunal gives at length at [180-188], as already held by the Court in AEX15 v Minister for Immigration and Border Protection [2017] FCA 821 at [40] … Having so found, the Tribunal's rejection of the Appellant's documents supporting his claim to be a member of the BNP was entirely in accordance with the principles in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [23-40] per North and Lander JJ, [50] per Katzmann J. It did not refuse to consider the Appellant's documents, but weighed them in the balance after making findings about the plausibility of his claims to be a BNP officeholder. That was a permissible course: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [33], [37-38]; SZVHO v Minister for Immigration and Border Protection [2016] FCA 1499 (Burley J) at [34-44]. 12 For those reasons, the appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.