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[2018] FCA 297
Federal Court of Australia
2018-03-13
Colvin J
Original judgment source is linked above.
COLVIN J: 1 The appellant is a citizen of Bangladesh. He arrived in Australia by boat and applied for a protection visa which was refused. 2 His application was based on his claim that he feared harm because he supported the Bangladesh National Party (BNP). He said that he encouraged people to vote in elections and participated in a demonstration prior to the election and he was targeted by supporters of the Bangladesh Awami League political party who sought to extort money from him. 3 After the appellant's application was refused, he sought review in the Administrative Appeals Tribunal. In those proceedings he was assisted by a solicitor and migration agent who attended the hearing and provided written submissions and supporting documents to the Tribunal. 4 The appellant's claim before the Tribunal depended upon his own evidence. The Tribunal did not accept the appellant's evidence and concluded that his protection claims were based upon a false account of events. The Tribunal identified a number of respects in which the appellant was unable to give an account of his support for the BNP or other details to support his claim. 5 The appellant then applied for a review of the Tribunal's decision in the Federal Circuit Court. His main complaint before the Federal Circuit Court and this Court is about the credibility findings of the Tribunal. He says that the Tribunal had a closed mind and did not reason properly and that the Federal Circuit Court should have allowed his application for review. 6 On an application for the review of a decision of the Tribunal in cases where an application for a protection visa has been refused, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court: s 476(1) of the Migration Act 1958 (Cth). For present purposes, that required the identification of jurisdictional error in respect of the Tribunal decision before the Federal Circuit Court could grant relief. In order to demonstrate jurisdictional error, it must be shown that the Tribunal has acted outside its power and authority or failed to exercise its statutory responsibilities. Jurisdictional error, in the sense relevant here, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by the Migration Act: Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23]. 7 The general types of complaint about the evidentiary findings in the Tribunal raised by the appellant in this appeal (in effect that the Tribunal should have accepted the evidence given by the appellant) do not give rise to a claim of jurisdictional error. 8 However, it has been held that the factual findings of the Tribunal must be rationally made and based upon probative material and logical grounds. Further, there may be jurisdictional error where a finding on credit on an objectively minor matter of fact is used as a basis for the Tribunal rejecting the entirety of the claimant's evidence. As to these matters see: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [40]-[55]. The Tribunal does not act outside its statutory power or authority by making factual findings based on assessments of credit. Indeed, the responsibility to make those findings is entrusted by statute to the Tribunal. 9 These matters confine the grounds that may be raised in the Federal Circuit Court and therefore the matters that may be raised by way of appeal to this Court.
Grounds of appeal 10 The appellant raises three grounds in this Court. First, a claim of jurisdictional error by the Tribunal failing to apply the correct test in relation to the complementary protection provision in s 36(2)(aa) of the Migration Act and that the Tribunal's decision was unreasonable with regards to complementary protection. Second, a claim that the appellant was denied procedural fairness and natural justice by the Federal Circuit Court failing to hold that the Tribunal applied non-judicial methods for the credibility test of the appellant's oral evidence and made a decision with a closed mind. It includes a specific claim that there was a failure by the Minister to provide transcript of the hearing before the Tribunal for the purposes of the appeal to the Federal Circuit Court when there was an obligation on the part of the Minister to do so. Third, a claim that the Federal Circuit Court failed to hold that the Tribunal did not understand the difference between relevant and irrelevant matters, mistook the facts and blindly gave a decision in favour of the Minister. 11 No details were provided at any point that would support a claim of a denial of procedural fairness or natural justice or the apparent claim of apprehended bias. 12 At the hearing of the appeal, the appellant was assisted by an interpreter in Bengali and English. He was invited to make oral submissions. He said that he did not wish to make oral submissions. He was asked if the grounds of appeal were the matters he wished to raise. He said they were the matters and though they were expressed in English they been translated to him. 13 In those circumstances, I treat grounds 2 and 3 as raising a complaint that the Tribunal failed to make factual findings in a rational manner based on probative material and logical grounds or that the evidence of the appellant was rejected on the basis of discrepancies as to minor matters of fact and the Federal Circuit Court erred in failing to find a jurisdictional error of that kind. 14 I will deal with that claim and then consider the separate questions about complementary protection and failure to provide the transcript.
The credibility based grounds 15 The Tribunal found the appellant to be "a most unimpressive witness" whose responses to Tribunal questions were "demonstrably vague, indirect and evasive". These, of course, are general characterisations or conclusions which need to be supported by probative material and logical grounds. 16 There are a number of matters that the Tribunal recorded to support its adverse finding as to the credibility of the appellant as a witness. In order to assess whether the Tribunal's approach could be characterised as a failure to discharge its statutory fact-finding function or to exceed its statutory authority as to the manner in which that function should be performed, I summarise the principal matters that the Tribunal included in its reasons as supporting its conclusion. 17 First, in response to questions as to how long the appellant had been supporting the BNP, he said he thought it was from a young age, but could not give a precise answer. He said it was possibly four or five years. The Tribunal observed that given his age when he left Bangladesh, if he had indeed been supporting the BNP from an early age then it would have been many more years. 18 Second, although the appellant said he was involved in elections in Bangladesh he was unable to give specific responses to questions about the nature of his involvement. 19 Third, in response to questions from the Tribunal, the appellant was unable to provide a rudimentary time-line as to who was in power in the government of Bangladesh during the time he lived there. 20 Fourth, when asked about the difficulties he had for supporting the BNP he referred to threats and attempts to attack him and described how people approaching him would try to start a fight and how it would start in different ways in different places. The Tribunal said this evidence was in a form that described several attacks to the appellant. However, when asked how many times these incidents occurred to him he said that it happened once. 21 Fifth, when asked to recount the incident when he was attacked he gave inconsistent evidence about when the attack occurred. 22 Sixth, when the appellant gave evidence that there were many occasions where people were harmed by the Awami League and it happened all the time, he could not explain why he was attacked on only one occasion and why, if he had been involved with the BNP for a long time, he had been subject to only one attack. 23 Seventh, the appellant produced a letter from the Convenor of the BNP in Australia who said that the appellant would be subject to a "false case" against him if he went back to Bangladesh. The appellant said that the Awami League would certainly file a false case if he went back to Bangladesh but no false case was filed against him while he was there. The appellant said that there was a mistake in what had been said by the Convenor and after an opportunity was given to make further submissions, he presented a further letter from the Convenor who said that the reference to a false case against the appellant was a mistake and he had been confused with another person. 24 Eighth, the appellant submitted to the Tribunal a letter from an office-holder of the BNP in his local area which said that he often had confrontations with the opposition party and their leaders. He could not provide an adequate explanation of the inconsistency between the statement that he often had confrontations and his evidence to the Tribunal that there had only been one occurrence where he had been confronted. 25 Ninth, the Tribunal questioned the appellant about his written statement where he said that he participated in a demonstration on one occasion before the election, but in his oral evidence to the Tribunal he said it could have been once per month. A submission was made to the effect that the reference in the written statement was likely to be incorrect, but this was not accepted by the Tribunal. 26 After having considered submissions to the Tribunal, it recorded its conclusion that there was no credible evidence that the appellant suffered harm in Bangladesh and that anyone in Bangladesh seeks to harm him. There was also no credible evidence as to why the appellant left Bangladesh and why he does not want to return there. For that reason, the Tribunal affirmed the decision not to grant the appellant a protection visa. 27 In the above circumstances, the Tribunal referred to probative matters and logical reasons to support its finding as to the credibility of the appellant. 28 The Federal Circuit Court was correct in dismissing the grounds that sought review of the decision by the Tribunal on the basis of its approach to credibility. The grounds that raise these matters must be dismissed.
Complementary protection 29 Under s 36(2)(aa) of the Migration Act there is a separate criterion for a protection visa that is stated. It concerns a case where the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm. 30 The appeal ground advanced in this Court was considered and rejected by the Federal Circuit Court. As the Court below correctly found, the complementary protection criterion was separately considered by the Tribunal. Therefore, this ground must be dismissed.
Transcript 31 The complaint made is that a copy of the transcript before the Tribunal was not made available to the appellant for the purposes of the appeal to the Federal Circuit Court. This appears to be a complaint of a failure to afford natural justice or a fair hearing by reason of this aspect of the procedure adopted by the Federal Court. There is no evidence or details advanced concerning the claim about the failure to provide the transcript. The ground was framed in terms of an obligation on the part of the Minister to provide a transcript of the hearing before the Tribunal. 32 A short affidavit was filed by the appellant in the proceedings before the Federal Circuit Court. The written submissions and grounds filed by the appellant in the Court below did not raise any issue about an obligation on the part of the Minister to provide a copy of the transcript for the purposes of the proceedings in the Federal Circuit Court. There is no evidence that the transcript was sought. In those circumstances, no issue can arise as to whether a transcript should have been provided. 33 In any event, having regard to the nature of the grounds that have been advanced by the appellant, the transcript would not have assisted. The appellant's complaint does not involve any suggestion that the Tribunal did not accurately record his evidence nor a claim that there was some material part of the events before the Tribunal that was not stated by the Tribunal in its reasons. Therefore, there is no merit in any complaint concerning the availability of the transcript. Where a claim is made of breach of the rules of natural justice through procedural unfairness then it must be shown that the complaining party has been deprived of the possibility of a successful outcome by the procedural error: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 147.
Orders 34 As the grounds of appeal do not disclose any error by the Federal Circuit Court in its conclusion that there was no jurisdictional error in the decision of the Tribunal. The appeal must be dismissed and costs should follow that event. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.
ALJ16
Minister for Immigration and Border Protection