ALS16 v Minister for Immigration and Border Protection

Application to the FCC 9 As mentioned, the grounds of review advanced by the appellant before the FCC seem to concern ss 424A and 425 of the Migration Act. However, the particulars of those identified grounds were rather more concerned with the determination processes of the Tribunal. In any event, the learned FCC judge interpreted the grounds in a way most favourable to the appellant and dealt with the matter on that basis. 10 The primary judge carefully considered the obligations of the Tribunal under s 424A of the Migration Act and identified the appellant had failed to identify any "information" which was not provided to him. His Honour found that to the extent to which information was not provided to the appellant it was exempt under s 424A(3). 11 In relation to the submission that the Tribunal erred in finding the appellant did not have a "well-founded fear" of persecution, the primary judge held the Tribunal's findings were reasonably open to it on the available material. It did not ignore his claims that he would have suffered if he were returned to Bangladesh. However, it did not accept that there was a real risk of significant harm and it provided reasons for that conclusion. 12 Submissions made by the appellant to the FCC that the hearing process was unfair were dispelled by a consideration of the transcript of the hearing before the Tribunal. 13 The appellant made the submission that the Tribunal's rejection of his assertions occurred without evidence or verification. The learned FCC judge dealt with this at [38] to [40] of his reasons which provide: 38. The Tribunal did not have to uncritically accept the applicant's evidence in support, or explanation, of his claims (Randhawa v Minister for Immigration, Local Government& Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265). As set out above, the Tribunal gave comprehensive reasons for disbelieving the applicant's claims and evidence. These findings were reasonably open to the Tribunal on what was before it. As the Minister submits, the findings were based on "rational grounds" that were arrived at upon consideration of matters that were "logically probative to the issue of credibility" (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) ALJR 405, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1226; (1998) 86 FCR 547 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 and see [15] of the Minister's written submissions). 39. In essence, the Tribunal gave reasons as to why it found the applicant was not a credible witness. It rejected his claims regarding his marriage to a Christian woman, his conversion to Christianity, and his claimed difficulties in Bangladesh, on the basis of these adverse credibility findings. 40. I also note, and as the Minister submits, the Tribunal's credibility findings did not require "positive evidence" ([15] of the Minister's written submissions). It was sufficient for the Tribunal to disbelieve the evidence because of the surrounding circumstances (WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139; (2004) 168 ALR 407 at [17]). 14 His Honour's identification of the law and the conclusions of the Tribunal were entirely accurate. It had determined the many inconsistencies in the appellant's evidence on fundamental matters were such that he could not be believed about his claims. It was not required to look for evidence to establish any alternative scenario or "positive evidence" to the contrary. 15 The learned primary judge dealt with the ground founded upon s 425 of the Act. It appears that on the day of the initial scheduled hearing the appellant's migration agent attended and sought an adjournment alleging the appellant was unwell. The Tribunal rescheduled the hearing and the appellant then duly attended. The Court noted that the transcript reveals the hearing on 2 February was a meaningful opportunity for the appellant to give his evidence and make his arguments in relation to the issues in review. 16 His Honour noted the substance of the complaint appeared to be the non-acceptance of the appellant's claimed corroborative evidence. As his Honour observed, this related to findings made by the Tribunal and not to the manner in which it conducted the hearing. In relation to the corroborative material the learned judge held the Tribunal had legitimately disregarded it. At [47] his Honour said: The Tribunal did not believe the applicant's evidence. The Tribunal found that its state of its disbelief was such that it could give no weight to the various items of written corroborative evidence (see [47] at CB 200 to [55] at CB 202). The Tribunal found the applicant had failed to give a consistent and credible account. Its concerns about his credibility significantly discredited him as a witness. In this light, the oral evidence of his witnesses, in particular the evidence from his uncle, could not overcome the Tribunal's concerns (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59). 17 Ultimately, his Honour noted the appellant's grounds before that Court did not rise above mere disagreement with the Tribunal's findings. He found those findings and conclusions were all reasonably open to the Tribunal for the reasons which it gave and on the probative material before it. 18 Although not a ground raised by the appellant, his Honour noted that if the appellant sought to rely upon his state of depression and anxiety before the Tribunal, he must show that such conditions affected his capacity to give evidence at the hearing. It had to be demonstrated he was unable to "give evidence, present arguments" or "answer questions in the course of a hearing" (Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]-[33] and SZOVP v Minister for Immigration & Anor (No.2) [2011] FMCA 442 at [48]). 19 In any event, the Tribunal determined the appellant was responsive at the hearing and engaged in giving evidence about his protection claims. He was given a meaningful opportunity to participate at the hearing. His Honour concluded no error could be found in that conclusion.

Appeal to this Court 20 The grounds of appeal to this Court are not easy to understand. In the notice of appeal they are expressed in the following terms: 1. The trial judge erred in considering that the constructive failure of the Second Respondent in determining the claim of the appellant the trial judge erred in considering the integer of the claim. 2. The trial judge erred in considering that the appellant's corroborative evidence which the appellant submitted the consider. 3. The trial judge erred in considering that the constructive failure of the Second Respondent in determining the claim of the appellant. 21 At the hearing the appellant appeared with the assistance of an interpreter. Unfortunately, he was not able to make any submissions which further advanced his claim before this Court. His main focus was to assert the Tribunal ought to have believed him when he claimed he had converted to Christianity. His outline of argument contained some grounds which came close to raising issues which might be legitimately considered by this Court. In that respect, he said other persons in the Bangladeshi community assisted him in preparing those submissions. 22 The approach taken in these reasons is to consider each of the general assertions in the Notice of Appeal and in the outline of submissions and distil from them the best arguments which might be advanced on the Appellant's behalf and then ascertain whether those arguments have any merit.

Consideration 23 It can be immediately noticed that the grounds of appeal seek to assert the existence of errors in the decision of the learned primary judge in relation to matters which were not agitated before him. In particular, the appellant now alleges the existence of a constructive failure by the Tribunal to consider his claims. 24 This is an attempt to raise on appeal a new ground which was not considered by the primary judge and in respect of which it cannot be said that the primary judge erred. The principles concerning the raising of new grounds on appeal were recently identified by the Full Court in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 (Murad) (per Griffiths, Mortimer and Perry JJ) where their Honours said: 19 The general principles guiding the decision whether or not to permit a ground to be raised on appeal which was not run below are well settled. They are reflected in the following observations of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48] (and which were recently reaffirmed in substance by Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [89]-[90]): 46 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]. 47 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. 48 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. 25 Necessarily, the principle identified in Murad is coherent with the essential purpose of an appeal being to rectify error in the court below. It ought to be kept in mind that appeals to this Court are not forums for the mere re-agitation of earlier proceedings. If a matter has not been advanced before the learned trial judge it is generally difficult to assert the existence of any relevant error in that decision which requires rectifying on appeal. The principles concerning the nature of appeals were succinctly identified by Flick J in ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 where his Honour said: [11] The nature of an appeal to this Court, as is now well-established, is in the nature of a "rehearing" and is a jurisdiction to be exercised for the correction of error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [20] to [21], (2001) 117 FCR 424 at 434 to 435 ("Branir"). In commenting upon Branir and other decisions of this Court, Griffiths, Kerr and Farrell JJ in Minister for Immigration & Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at 13 to 14 ("SZVFW") have helpfully summarised the position as follows: [40] It is important to now say something about the nature of the appeal. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). It is an appeal in the nature of a rehearing. This has important implications for the nature and scope of the appeal. It is well established that a rehearing is not a new hearing during which the original application is determined without regard to what happened in the Court below and without regard to its findings … [41] It is equally well established that the role of the Court on an appeal by way of rehearing is the correction of error. As Allsop J (as his Honour then was) emphasised in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd; (2001) 117 FCR 424 (Branir) at [21] in such a case there is a "need to show error on appeal". It is desirable to set out in full that paragraph from his Honour's judgment (noting that Drummond and Mansfield JJ agreed with it): However, this conclusion does not alter the need to show error on appeal. In Hamsher Beaumont J and Lee J identified the need for the demonstration of error in the trial judge's findings or conclusions and they expressed the view that the statements in Warren v Coombes; (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected. [42] The need to identify appealable error in an appeal by way of rehearing and the incorrectness of an approach which simply invites the Full Court to consider the matter afresh and come to its own view, which appeared at least at one point to be the position advanced by the Minister, is reflected in the following passage from the joint judgment of Siopis, Gilmour and Katzmann JJ in Mesa Minerals Ltd v Mighty River International Ltd; (2016) 241 FCR 241 at [85] (which, notably, refers approvingly to Allsop J's observations in Branir): In effect, Mesa sought to re-run the case it lost below. Yet, the appeal is in the nature of a rehearing; it is not a hearing de novo. The Court's task is to correct error. The determination of the question of whether Mighty River was acting in good faith and the inspection was sought for a proper purpose was largely an evaluative one. The primary judge's decision is entitled to be given some weight. Where, as here, the nature of the issues is such that there cannot be said to be one truly correct answer, the availability of a different view or a preference for a different view, is unlikely to be sufficient: Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [25] per Allsop J (as his Honour then was), Mansfield and Drummond JJ agreeing. As Allsop J went on to explain at [30]: The proper approach is not to ask the court to survey all the evidence, directed by the otherwise unassailable findings on credit, and to ask it to arrive at its own conclusions, without "essaying the necessary task of positively demonstrating that the trial judge was wrong"… It is not appropriate to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. Error must be demonstrated … The views and conclusions of the trial judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple re-argument of the case take place. 26 Putting to one side for the moment the difficulty of raising new grounds on appeal, the quintessential difficulty for the appellant in this case is that the Tribunal disbelieved his evidence and it did so, as the learned judge below determined, on grounds which were reasonably open to it from the available material. It is worth identifying its conclusion on this topic which was set out at paragraph 41 of its reasons: Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant's claims that he married a Christian woman; that he married her in a Christian church and that he converted to Christianity, including being baptised in a Christian church. It follows that the Tribunal disbelieves the applicant's evidence about family, friends and fundamentalists disapproving of what he had done and his evidence that fundamentalists or anybody else assaulted or threatened him, including announcing that he and his wife had to be killed. There is simply no credible evidence before the Tribunal as to why the applicant left Bangladesh and why he does not want to return there.

Grounds 1 and 3 27 There is no obvious content to the appellant's argument that the Tribunal constructively failed to consider his claim or any integer of his claim. No particular claim or "integer" has been identified and none appear from a consideration of the appellant's statement to the delegate and the determination of the Tribunal. It follows that there is no merit to this ground even if the appellant was able to satisfy the criteria for raising it for the first time on appeal. 28 That conclusion tends to undermine any validity to grounds 1 and 3 in the notice of appeal. There was no failure by the Tribunal to consider his claim or any part thereof. Equally there was no failure by the learned primary judge to identify any error by the Tribunal.

Ground 2 29 The second ground appears to be a concern the Tribunal did not accept the appellant's claimed corroborating evidence. Amongst other things, that evidence consisted of letters from a Baptist Church in Bangladesh asserting that the appellant had married his wife in that church and converted to Christianity. The appellant also submitted entries from a marriage register book which purported to show that he was married at that Baptist Church in January 2013. He also submitted a letter from the Christian Group in Bangladesh asserting that he was harmed for marrying a Christian. A further letter from a Bangladeshi Christian Group in Australia was given to the Department. That letter came from the President of that group and indicated the appellant attended monthly prayer meetings and did other voluntary work for the group. A witness before the Tribunal gave evidence the appellant and his wife went to a church in Sydney. Another witness, who was the minister of that church, claimed that the appellant went there with his aunt. 30 The difficulty for the appellant is that the Tribunal's concerns about his credibility so discredited him as a witness that it was not persuaded by assertions made in the letter from the Christian Group in Bangladesh that he was harmed for his alleged marriage and conversion. It did not give weight to that document because it was satisfied that the appellant's claims about the harm he encountered in Bangladesh were false. 31 The treatment of the entries in the Church register and certificate of baptism were dealt with differently. It found that these documents do no more than assert that the appellant was married and baptised in the church on a particular dates. The Tribunal did not give evidentiary weight to the documents because they were inextricably linked to the appellant's overall account of needing protection from fundamentalists who wished to kill him, an account which it did not believe. It identified the appellant's lack of credibility affected all of his evidence including his claims about his relationship, his marriage, baptism and the impact of that on others. The Tribunal found the appellant's credibility was so lacking it infected the whole of his evidence such that there was no need for it to further investigate the claimed corroborating evidence. It said it reached a stage whereby any further investigation would not alter its conclusion that it disbelieved the appellant's account of events on which his claims for protection were made. Indeed, it concluded the appellant had not become a Christian and nor had he any adherence to the Christian religion, but had always remained a Muslim and for that reason the documents and other evidence supporting that contention carried no weight. At [56] of its reasons it said: The Tribunal disbelieves evidence he gave the delegate that his sister who lives in Australia has little to do with him because he is a Christian. That is because the Tribunal does not believe that the applicant is a Christian. While the Tribunal has accepted the applicant has attended a Christian church and religious gatherings in Australia, he has not done this out of any genuine commitment to Christianity. Further, there is no credible evidence before the Tribunal that his attendance in Australia is of interest to anybody in Bangladesh. To the department the applicant submitted information about the Christian group in Bangladesh which provided the letter for him and which has been discussed above. None of that information makes specific reference to the applicant. He also submitted information about the treatment of Christians in Bangladesh including about those who convert to Christianity and witness B made statements about that at the hearing as well. This information does not assist the applicant because he is not a Christian and has never converted. 32 It follows the Tribunal did not overlook or fail to consider any of the claimed corroborating evidence. Indeed, it dealt with the evidence at some length and explained why it did not accept it. There was no error in it having done so. Similarly, the learned judge at first instance identified this was so and he was correct in doing that. This ground of appeal must also necessarily fail.

New grounds of appeal 33 The appellant has sought to raise new grounds of appeal in his written outline of submissions. The Minister opposed the advancing of such grounds in the first instance on the basis that they do not satisfy the requirements identified in Murad. In the alternative, he submitted that the new grounds fail in any event.

The first new ground 34 This ground is that the Tribunal erred because, on the one hand, it accepted the appellant had a relationship with a Christian woman and attended monthly gatherings held by a Bangladeshi Christian group in Australia, but on the other hand it inconsistently rejected his account about marrying a Christian woman and becoming a Christian and that it was evident that he suffered persecution because of his relationship. However, this ground is misconceived. The Tribunal in fact found the appellant did not become a Christian and that he has remained a Muslim. Whilst it is true that the Tribunal accepted he attended monthly church gatherings with a woman, it found that he had not done so because he was a Christian. There was no credible evidence as to why he attended the church or religious gatherings in Australia and there was also no evidence his church attendance in Australia was of any interest to anyone in Bangladesh. It followed that, having rejected the factual substratum of the appellant's claim, namely that he had become a Christian, the Tribunal did not need to consider whether he would face harm in Bangladesh as a Christian convert. 35 It has not been shown it is in the interests of justice that this ground be agitated on appeal. It seems to be based on a misunderstanding of what the Tribunal in fact decided. Moreover, it is a ground of minimal merit 36 In the written submission the "particulars" to the first new ground refer to a number of documents concerning proselytization and religious conversion in Bangladesh. None of those documents were before the Tribunal and are irrelevant to this appeal. No application is made to tender fresh evidence on the appeal and there is no basis for taking that step.

The second new ground 37 This ground raises the contention that the Tribunal failed to consider the appellant would be imputed as having converted to Christianity and, as a consequence, persecuted if he were returned to Bangladesh. This too is a new ground and if it had any merit it might have been necessary to consider whether it ought be allowed. However, there is no basis for believing the people in Bangladesh would impute to the appellant a conversion to Christianity. The Tribunal found that his church attendance in Australia was not of any interest to anyone in Bangladesh. Similarly, it also found that as the appellant did not have a relationship with a Christian woman in Bangladesh there would be no imputation of Christian affiliation. 38 This ground also has no chance of success in the circumstances.

The third new ground 39 This ground seeks to take issue with the Tribunal's conclusion, set out at [59] of its reasons, that the appellant did not face a real risk he will suffer significant harm if returned to Bangladesh. The allegation appears to be that the Tribunal did not deal properly with the claim under the complementary protection provisions. However, in considering the appellant's claim under the Convention grounds, the Tribunal had rejected the appellant's accounts of events and assertions as he had advanced them. Because of that, the substratum of his claim pursuant to the complementary protection grounds fell away and the Tribunal was able to quickly conclude the appellant was not entitled to a visa on that basis either. There was no error in it doing so.

The fourth new ground 40 By this ground the appellant claims the Tribunal was required to consider whether he would continue to engage in his relationship or be dissuaded from re-engaging in the relationship and whether any harm would arise as a result on his return to Bangladesh. However, this issue merely attempts to circumvent the findings of the Tribunal. It had determined that he did not have a relationship with a Christian woman in Bangladesh or that he converted to Christianity. That being so the question postulated did not arise. Again, there is no merit to this ground which would warrant the granting of leave to allow it to be advanced.

Further issues 41 In this written outline the appellant advanced further contentions about the Tribunal's findings. However, they are either a repetition of what has been dealt with above, being the alleged failure to consider the corroborating documents or a complaint about the Tribunal's fact finding process which led it to rejecting the appellant's claim of fear to persecution. To the extent to which this ground might seek to raise illogicality or irrationality it cannot be maintained. The appellant has not attempted to show, and nor is there any basis for asserting, that there was no evident and intelligible justification for the conclusion reached: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10], per Kiefel CJ. Nor can it be said the conclusion was irrational or unreasonable. The Tribunal identified at length the inconsistencies and deficiencies in the appellant's account of events and concluded his evidence as a whole lacked any credibility. That course was open to it on the available material.

Further particulars 42 Under the heading of "particulars" the appellant raises a number of other points. Some of them are re-agitations of points advanced in the Court below. 43 The first point appears to raise the assertion that the appellant's evidence was disbelieved without the existence of contrary evidence. This has been dealt with above. The Tribunal was not required to uncritically accept all or any of the applicant's evidence or claims: Randhawa v Minister for Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451E: its obligations under the Migration Act are to consider the claims and the evidence and to make an assessment of the plausibility and credibility of the account of events as advanced to it: AAO15 v Minister for Immigration and Border Protection [2015] FCA 1291 at [48]; ACF16 v Minister for Immigration and Border Protection [2016] FCA 982 at [43]. In the above process, it is a matter for the Tribunal to determine what weight to accord any particular piece of evidence. Here, its conclusion that the appellant lacked credibility such that his claims could not be accepted was supported by the material before it. 44 Particulars 2 and 3, which repeat grounds which were before the learned primary judge, reference s 424A of the Migration Act. However, the gravamen of these complaints really amount to disagreements with the Tribunal's adverse credibility findings. The appellant has not identified any information before the Tribunal which enlivened the obligation under s 424A and, on the material before the primary judge, no such information was apparent. It follows that this ground has no chances of success either. 45 Particulars 4 and 5 are the same as ground 2 in the Court below. It alleged a breach of s 425 of the Migration Act, but, again, the gravamen of the complaint appears to be the Tribunal did not accept the appellant's oral evidence and supporting documents. In any event, there is no merit in this ground. The appellant appeared before the Tribunal with the assistance of his legal representative and a Bengali interpreter. There was no evidence his claimed depression and anxiety rendered him unfit in the sense of being unable to give evidence, present arguments and answer questions in the course of the hearing. This was considered by the Tribunal at [42] where it said: In reaching this finding, the Tribunal has considered claims made by the applicant about his mental state. In this respect, the Tribunal hearing was originally scheduled to take place in December 2015 but was postponed at the request of the applicant. He submitted a certificate from a doctor stating that he had a 'medical condition' and was unfit for work or study on that date. In the response to the hearing invitation, it was claimed that the applicant suffered from 'diagnosed anxiety and depression'. Subsequently, the Tribunal was given a medical certificate dated 23 December 2015 from a doctor in Sydney who said the applicant has been suffering depression aggravated by panic attacks and so was unable to attend the Tribunal hearing in December 2015. The Tribunal was also provided with a receipt from a pharmacy in Sydney issued in December 2015 for medication for the applicant. 46 The learned trial judge determined there was nothing before the Court to indicate the Tribunal had misunderstood or had "misjudged" the appellant's evidence in any way. His Honour concluded the appellant's complaint in this respect was no more than an attempt to re-agitate the merits of his application. It has not been shown the trial judge's conclusion on this was in error. 47 In the result there is no merit in this ground either.

Conclusion 48 The effect of the above is that none of the grounds of appeal are made out. To the extent to which the grounds advanced to the Court are new grounds, none of them have sufficient merit to warrant the granting of leave, if that be sought. 49 It follows that the appeal must be dismissed. There is no reason why the appellant ought not pay the first respondent's costs of the appeal. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.