ALE16 v Minister for Immigration and Border Protection

The FCCA proceeding 13 On 29 February 2016, the applicant sought judicial review of the AAT's decision. The application set out in narrative form over one page the ground of judicial review. The ground related to the AAT's credibility concerns and the alleged failure of the AAT to comply with s 422B of the Act in not providing a fair and just hearing because of a failure to invite the applicant to respond to the AAT's credibility concerns under s 424AA of the Act. 14 On 15 August 2016, the FCCA delivered an ex tempore judgment dismissing the application. The reasons for judgment were published on 1 September 2016, i.e. after the applicant filed his application for an extension of time in this Court. 15 The primary judge found that the application failed to identify any arguable jurisdictional error. The application was summarily dismissed under r 44.12 of the Federal Circuit Court Rules 2001. 16 His Honour also gave reasons for refusing the applicant's application for an adjournment (see [14]-[16]). 17 The primary judge found that the AAT made credibility findings that were open on the material before the AAT, which could not be said to lack an evident and intelligible justification (at [18]). His Honour stated that, to the extent the applicant made reference in his application to s 424AA of the Act, he had not identified any information which might enliven any obligation under s 424A of the Act. Insofar as the application also referred to s 422B of the Act, his Honour noted that the applicant had been invited to attend a hearing. His Honour found, on the material before the FCCA, that the AAT complied with its statutory obligations and the requirement to afford procedural fairness. The primary judge's central reasoning is reflected in [19] and [20]: 19. To the extent that the applicant makes reference to s.424AA of the Act, no information is identified by the applicant enlivening any obligation under s.424A. In relation to reference to s.422B, it is apparent that the applicant was invited to attend a hearing. On the material before the Court, the applicant had a genuine and meaningful hearing, and the Tribunal complied with its statutory obligations in the conduct of the review. There was no breach of s.422B or s.424AA of the Act. 20 The application fails to identify any arguable case of jurisdictional error. On the material before the Court, the Tribunal complied with its obligation to afford procedural fairness to the applicant in the conduct of the review. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. The application fails to identify any arguable jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court's power under r.44.12 of the Federal Circuit Court Rules 2001.

Extension of time to seek leave to appeal 18 When the matter was called for hearing, the applicant appeared representing himself with the assistance of an interpreter. He made an oral application for the proceeding to be adjourned on the basis of his feeling of mental stress and the need to have more time. He was unable to support this application with any medical evidence. His application was opposed by the Minister. I refused the adjournment application and said that I would give reasons for doing so in due course. These are those reasons. 19 The applicant has known since 8 September 2016 that his application would be heard during these sittings of the Full Court. He did not provide any supporting medical evidence. I pointed out to him that all litigation is stressful. No proper basis was advanced to have the proceeding adjourned. 20 It was common ground that the applicant required an extension of time as he commenced his proceedings two days after the 14 day appeal period had expired. Considerations relevant to the exercise of the Court's discretion to extend time include, but are not limited to, whether the Court is satisfied that there is an acceptable explanation for the delay, whether there would be any undue prejudice to the respondent if the Court were to grant an extension of time, and whether there is any merit in the proposed appeal (see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; AOT15 v Minister for Immigration and Border Protection [2016] FCA 1085 and BBW15 v Minister for Immigration and Border Protection [2016] FCA 128). 21 To be granted leave to appeal, an applicant must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal of leave to appeal assuming the decision below to be wrong (see Décor Corporation Pty Ltd and Anor v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399). 22 The applicant was only two days late in filing his application for leave to appeal. He has filed an affidavit indicating that the delay was due to him thinking the time in which he could file his application was 28 days not 14 days. The applicant represented himself in this Court and in the proceeding below. I accept his explanation for the slight delay in commencing the proceeding, which delay could hardly cause any prejudice to the Minister. 23 Both active parties filed outlines of written submissions. The applicant's written submissions were filed only the day before the hearing. The applicant represented himself. His written submissions bore only limited relevance to the proposed three grounds of appeal. The submissions may be summarised as follows. (a) The applicant claimed that the AAT made a jurisdictional error when it failed to consider each integer of his claims and/or failed to take into account all the evidence before it. He elaborated on this claim by saying that he wanted to explain why his family had been targeted by the Awami League because of his father's political activities and he was not given enough time to expand upon his arguments and the AAT "did not account this incident and nature and proceedings of my interview" with the delegate. He said that this meant that the AAT had failed to perform its statutory task, citing Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547. (b) The applicant claimed that the AAT fell into jurisdictional error and made a decision with a closed mind when it "discarded all the oral and relevant submission (sic) without giving any solid evidenced (sic) of cumulative credibility concerning the finding of reasons". He added that the inconsistencies in his evidence were because he misunderstood the questions and was nervous and distressed. (c) He further claimed that the AAT applied the wrong test in relation to s 36(2)(aa) of the Act and it failed to assess his fear of persecution in the light of the "current explosive situation in Bangladesh which has been highlighted in all of the world". He emphasised that his fear of harm was well-founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh because he has no genuine protection from the Government of Bangladesh which he said is ruled by the Awami League. (d) He also claimed the AAT did not follow proper statutory procedures which he explained included that the AAT's decision did not properly take into account his application. The AAT relied only on "general facts", which he said amounted to a denial of procedural fairness, citing the High Court's decision in Muin v Refugee Review Tribunal [2002] HCA 30 (Muin). The applicant made detailed submissions in respect of Muin. He acknowledged that, at a factual level, his case "differs substantially" from Muin, but he submitted that the procedural unfairness was "very much similar". He said he had been misled by the letter he received from the AAT because he claimed that the AAT had not read all the documents before the delegate, including documents providing country information and "various materials in relating to establish (sic) my claim as a refugee". (e) The applicant made detailed submissions as to why the AAT's decision is amenable to judicial review for jurisdictional error. He said that if he succeeded, he would "get the opportunity to submit all of my documentary evidence before the AAT if my merit review application to the AAT for further consideration" (sic). (f) In further support of his claim that there had been a failure to consider an integer of his case, the applicant submitted that the AAT did not take account of the background to his motivation in joining the BNP, nor more recent information concerning attacks by supporters of the Awami League on BNP supporters. (g) Finally, the applicant asserted that the AAT fell into jurisdictional error "when it discarded all the oral and written submission (sic) without giving any solid evidence of cumulative credibility concern (sic) in the finding of reasons (sic)". He alleged that the AAT asked many irrelevant questions to discredit and confuse him and that the Tribunal's doubts about his credibility were "not true". 24 The applicant was invited to make oral submissions in support of his application. He said that he had nothing to add to his written submissions. He also declined an opportunity to say anything in reply. 25 As I pointed out during the course of the hearing, the primary obstacle confronting the application is the lack of merit in the draft grounds of appeal, which are as follows (without alteration): 1. The judge of the Federal Circuit Court in his honourable judgement delivered on the 15 August 2016 failed error of law and relief under the judiciary Act. The honourable judge failed to find that the Administrative Appeal Tribunal (AAT) has not found any evidence in relation to may claims and thus its decision influenced by sufficient doubt. 2. The Administrative Appeals tribunal's fail to separate the claim to be refugee and fear of harm test for the provision of the Complementary Protection. 3. Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 12 August 2014 in deciding my Protection visa application. Thus, the procedures that were required by the act or regulations to be observed in connection with the making of the decision were not observed. 26 The first ground of appeal simply asserts error by the primary judge in not finding error on the part of the AAT. The ground fails to identify any arguable appealable error. 27 The second ground appears to assert that the AAT did not separate or perhaps apply the correct tests to consideration of the applicant's claims under the Refugees Convention and on complementary protection grounds. This was not an issue raised in the Court below, but in any event no such error is arguable having regard to the AAT's reasons for decision which manifest a correct understanding of the relevant tests. 28 The third ground is a general assertion that the Tribunal failed to follow proper procedures under the Act. It appears, however, that the ground is directed to those parts of the primary judgment concerning ss 424AA, 424A and 424B of the Act. The primary judge's reasons for dismissing this aspect of the applicant's judicial review case are set out in [19] of his reasons for judgment (see [17] above). In my respectful view, desirably the primary judge should have provided more detailed reasons on this matter (see Flick J's decision in BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; 241 FCR 450). It may well be, however, that their brevity reflects how the case was presented below and the lack of relevant particulars. It is reasonably apparent, however, that the applicant's grievance is directed to his complaint that he was not given an opportunity by the AAT to comment on its proposed adverse credibility findings. 29 There is a detailed discussion of these statutory provisions in the Full Court's decision in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; 229 FCR 90 per Perram, Jagot and Griffiths JJ, where reference is made to the High Court's decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. There, the High Court noted at [18] that the Tribunal's disbelief of the appellants' evidence in that case arising from inconsistencies therein was not "information" within the meaning of s 424A(1)(a). The High Court observed that however broadly "information" be defined, "its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence (emphasis added). This view was reaffirmed by the High Court in Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 at [22] and [23]. In the light of these authorities, it is evident that ground 3 must fail. Accordingly, I consider that the primary judge was correct to reject it as not involving an arguable case of jurisdictional error. 30 As to the other matters raised by the applicant in his written outline of submissions (and on the assumption that those matters are directed to additional proposed grounds of appeal, and also putting to one side whether the applicant requires leave to raise these matters as they were not run below), for the following reasons I do not consider that any of them raises an arguable case which warrants time to be extended and a grant of leave to appeal. 31 As to the first matter, the applicant has not persuaded me that he was not given a reasonable opportunity to present his case before the AAT, or that the AAT did not consider his claims and the evidence he provided. The AAT fully explained why it did not accept the applicant to be a witness of truth. 32 The second of the matters is without any arguable substance. The AAT gave very detailed reasons why it did not accept the applicant's claims. The applicant pointed to nothing other than the AAT's reasons and decision in support of his suggestion that the AAT had a "closed mind". Comprehensive reasons were given by the AAT at [24] to [42] as to why it found that the applicant was not a witness of truth. As the Full Court recently emphasised in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37] and [38] per McKerracher, Griffiths and Rangiah JJ, adverse credit findings are amenable to challenge for jurisdictional error on various different bases, but none of those matters are relied upon by the applicant. The applicant's complaint boils down to a grievance that the AAT did not accept his claims and evidence, which falls well short of raising an arguable jurisdictional error. 33 As to the third matter, I repeat what is said in [28] above. 34 As the fourth matter, the applicant was unable to provide an acceptable explanation for inferring that the AAT did not consider all the evidence before it. Merely because the AAT may not have expressly referred to every document placed before it in its reasons for decision does not establish that the material was not considered by the AAT. It is notable that in [15] the AAT makes express reference to documents provided by the applicant's then representative in support of the application previously provided to the Department. The facts in the applicant's case are far removed from those in Muin. 35 As to the fifth matter, there is no dispute that the AAT's decision was amenable to judicial review for jurisdictional error. 36 The sixth matter also lacks arguable substance in circumstances where the AAT set out in [4] to [21] the background to the applicant's claims and, then, provided comprehensive reasons in [24]ff for why it rejected his evidence concerning his background and his father's religious and political activities in Bangladesh. The AAT's reasons for finding that the applicant did not have a well-founded fear of persecution are also set out at considerable length in [43]ff and, in a case of complementary protection, detailed reasons are provided in [50]ff. I am not satisfied that the applicant has raised any arguable jurisdictional error in respect of the AAT's reasoning on these or any other matters. 37 As to the seventh matter raised by the applicant, as I have already emphasised, the AAT went to considerable lengths to explain why it concluded that the applicant was not a witness of truth. The applicant's dissatisfaction with those reasons relates to the AAT's assessment of the merits of his case. He has been unable to point to any arguable jurisdictional error in the AAT's reasoning. 38 For all these reasons, the applicant has failed to persuade me that there is sufficient doubt in the correctness of the primary judge's rejection of his judicial review challenge to warrant the grant of leave to appeal.

Conclusion 39 The application for an extension of time and leave to appeal should be dismissed, with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.