APK16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-11-01|Before: Farrell J

The appeal is dismissed.
The appellant must pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FARRELL J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia: see APK16 v Minister for Immigration [2017] FCCA 782. The primary judge dismissed the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal. 2 The appellant (also referred to as "APK16") is a citizen of Bangladesh who arrived in Australia on 16 September 2013 on a visitor (Subclass FA 600) visa. He applied for a Protection (Class XA) visa on 10 December 2013 which was refused by a delegate of the Minister for Immigration and Border Protection. The Tribunal affirmed that decision.

Federal Circuit Court 11 APK16 was represented by Mr Kumar of counsel at the hearing of his application for judicial review.

Grounds 12 In his amended application, APK16 claimed (in summary) that the Tribunal committed jurisdictional error by: (1) Failing to engage with APK16's claim that his involvement with the BNP at the local level heightened the risk of harm to him and/or it illogically concluded that he was not at the risk of harm for political activities. The particulars of this claim were that the Tribunal accepted (at DR[31]) that he was a member of the BNP and held positions in it although it did not (at DR[36]) accept that he was of high profile. The Tribunal did not engage with his claim (or an integer of it) or engaged with a different claim than that propounded by APK16 (that he was of high profile nationally), whereas APK16 was claiming that he suffered from threats in a particular region. (2) Denying APK16 procedural fairness and/or constructively failing to consider his claims and, in particular, the Tribunal did not engage with and consider documents submitted. The particulars of this claim are that the Tribunal found that his position at a local level did not expose him to risk. While it accepted his claim to be a member of the BNP and that he held positions in the BNP, it failed to give him an opportunity to address its findings (at DR[36]) that he is not high profile and is unlikely to be harmed. The Tribunal did not provide him with an opportunity to address country information from DFAT in light of his claims. (3) The Tribunal denied APK16 procedural fairness and thereby committed jurisdictional error by failing to obtain relevant information and documentary evidence concerning his political engagement and charges against him. The particulars of the claim note that the various documents, including documents relating to false charges and the relevant court proceedings had been submitted by APK16. They note that charges against persons are generally public information and readily available. They go on to state that it would have been reasonably easy for the Tribunal to obtain information about whether the charges were genuine through public records or DFAT was in a position to obtain the information regarding his BNP activities, the Tribunal having accepted his claim that he held positions in the BNP. (4) The Tribunal committed jurisdictional error by failing to properly engage with material the appellant provided it in respect of charges made against him. APK16 relied on the first three of those four grounds.

Primary judge's consideration 13 In accordance with APK16's counsel's submissions, the primary judge considered grounds one and two together. The primary judge referred to APK16's written submissions in which he claimed that the Tribunal "generically characterised" APK16's roles in the BNP and, by characterising the roles as "low-level", the Tribunal conflated "the various roles in composite fashion" and therefore failed to assess the claim advanced by APK16. APK16 submitted that the Tribunal assessed the risk to him by reference to whether he had a high-profile nationally, whereas his claim was that he was at risk in the particular region in which he operated: J[18]. 14 The primary judge first considered whether the Tribunal considered APK16's claims on the basis that he had a national, as opposed to a regional, profile by reference to the express terms of DR[31] which is set out at [7] above. By reference to the claims made in APK16's protection visa application, the primary judge found that it was not correct that APK16 had restricted his claim to fear harm by reference only to having a local profile. His Honour found that, in any event, the Tribunal assessed APK16's claims based on a finding that he had a profile in his local area. Accordingly, if APK16's claim was one based on his having only a local profile, the Tribunal assessed that claim. It was the activities APK16 undertook in his local area that the Tribunal found were "low-level". The primary judge did not accept that the Tribunal conflated the different roles that APK16 undertook or that the Tribunal described them in a composite fashion, noting that the Tribunal identified that he was a member of the BNP, the president of the Union Committee, and the vice president of the Upazila Committee and it set out the activities he undertook on behalf of the BNP. It was by reference to these matters that the Tribunal assessed APK16's claims. His Honour found that grounds one and two therefore failed: J[19]-[23]. 15 The primary judge found that ground three was directed to the claim that the Tribunal failed to take up APK16's suggestion that DFAT make enquiries relevant to the authenticity of documents on which he relied: J[25]. His Honour found that the ground rested on factual premises which are not supported by any evidence, such as the contention that charges against persons were generally public information and that it was easy for the Tribunal (or DFAT) to obtain information concerning whether the charges were genuine through public records or from the institution. The primary judge found that whether or not those contentions are correct depends on evidence, none of which was tendered and for that reason alone the ground was not made out: J[26]. With respect to submissions made by APK16's counsel, the primary judge considered passages from the judgment of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [26] and Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, [2009] HCA 39 at [19] and of the Full Court of this Court in Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55; [2013] FCAFC 139 at [28] and concluded that whether or not in any particular case the Tribunal is under a duty to make an enquiry about the existence or nonexistence of a particular fact depends on whether the fact is a critical fact and, if so, whether the fact is one whose existence or nonexistence could easily be ascertained: J[27]-[29]. While it may be accepted that the question of the authenticity of documents on which APK16 relied was critical to his claims, he submitted nothing but bare assertions to the effect that their authenticity could be easily ascertained, but there is no evidence on the basis of which the primary judge could be satisfied of that. The Tribunal gave thought to the question and did not accept that an obvious enquiry was open to it: J[30]. The primary judge found that there was another matter relevant to whether the Tribunal acted reasonably: There is evidence relevant to the authenticity of documents which it was open to APK16 to provide, the most obvious class is evidence that would show how APK16 came to possess the documents he provided to the Tribunal: for instance, did APK16 or someone else obtain them and when and how? APK16 did not provide any such evidence to the Tribunal and the Tribunal did not act unreasonably by not attempting itself to make enquiries of the organisations that purportedly issued the documents. The primary judge found that ground three also failed: J[31].

Appeal to this Court 16 The Minister filed written submissions and appeared at the hearing of the appeal by his legal representative. APK16 did not file written submissions in accordance with the timetable which had been set down and he was not legally represented at the hearing. The Court was assisted by an interpreter.

Grounds of appeal 17 APK16's grounds of appeal are (as written): 1. [The primary judge] failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test of persecution in relation to the Complementary Protection Visa Provision contained in section 36(2)(aa) of the Migration Act 1958. The AAT failed to separate the claim to be refugee and fear of harm test for the provision of the Complementary Protection. 2. Hon Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to understand how the BNP supporter persecuted by Awami League supporter and police. I was denied procedural fairness when the Tribunal made opinion based on assumption and possibilities. The Tribunal failed to assess the current situation in Bangladesh. Where thousands of BNP workers are arrested recently and harassed by the Awami League Government Authority. In assessing danger to me the Tribunal undermined the danger, I will face if I compelled to return Bangladesh as a returned Asylum seeker. 18 Annexed to the notice of appeal is a document entitled "Annexure: Brief Description". That document sets out a brief chronology of APK16's visa application history and his claims to fear persecution in Bangladesh. 19 The first ground of appeal was not relied on before the primary judge, and accordingly leave to rely on that ground is required.

Paper handed up by APK16 20 At the commencement of the hearing, APK16 handed up an eight page document which he said had been prepared by a friend. 21 Under the heading "background", there are set out seven paragraphs containing chronological information about APK16, the history of his protection visa application, his application to the Tribunal and his application for judicial review all of which appear to be generally correct. 22 Under the heading "AAT Decision and Reasons", there are 50 paragraphs containing some more biographical information, some of the history of the protection visa application and assertions concerning the proceedings before the Tribunal and its findings. The Minister's legal representative pointed out, and I accept, that it appears that not all of the material in this part of the paper relates to the appeal under consideration. For instance, at [43] on page 4, it states that the Tribunal accepted that the police had briefly detained and questioned the appellant about a meeting. There is no such reference in the Tribunal's reasons. The paper also makes references to the nature and extent of activities undertaken in Australia which have no apparent relevance to this matter since that issue appears nowhere in the Tribunal's reasons. 23 Under the heading "Grounds of Review", there appears the following (as written): The Tribunal fell into jurisdictional error by deciding that the threshold requirements under s 36(2)(a) had not been met based on a misconstruction of the expression 'political opinion' in Article IA of the Refugees Convention. I claimed that I was involved in the BNP, I claimed he was attracted to BNP because I agrees with its objectives of wanting to establish democracy and encourage people right in politics. The Tribunal asked me about my political activities and my attendance at political events, concluding that my involvement with the BNP was at a very general level. The Tribunal found that having regard to the my vague, unsubstantiated claims about my political activities and profile in Bangladesh, and my lack of any demonstrated ongoing political interests at most I was a low-level supporter of the BNP. The Tribunal found that 'the applicant is no more than a low-level BNP supporter and that I did not engage in a wider range of BNP -related political activities or become an BNP activist. The Tribunal fell into jurisdictional error by making a purported decision that was manifestly illogical, irrational or unreasonable. The Tribunal stated I said in relation to my involvement in BNP in Australia that I was not in contact with any members now. I stated I was reluctant to contact BNP or similar bodies because this could reignite memories of my past in Bangladesh and induce more anxiety. The Tribunal 'was sceptical about this comment, as a politically engaged person might equally be keen to maintain their network, for instance to keep abreast of local political news and for social reasons. In my statement, I stated that I still believes in the policies of BNP. Ministerial Direction No 56 states that decisions makers 'must take into account DFAT country information assessments in the course of making a decision. The Tribunal failed to consider specific relevant examples of the Awami League's propensity for violence against supports of JI and the BNP and the culture of impunity in Bangladesh. 24 Under the heading "Conclusion" there appears the following (as written): 1. The Minister's delegate (DIBP) & Tribunal erred, failed to distinguish between genuine and false documents. The Tribunal and Circuit Court erred in affirming the decision. 2. The Minister's delegate (DIBP) & Tribunal erred, denied the genuine documents without any credible investigation of my documentary evidences. The Tribunal and Circuit Court erred in affirming the decision. And did not properly observe the Judiciary Act. 3. The Minister delegate (DIBP) & Tribunal denied all the genuine documents based on the country information as well their chosen source (Home Office UK). The information is not fact and it varies from source to source. The Minister delegate (DIBP) & Tribunal erred to deny the facts based on country's information and relied on their chosen source of information which is not the fact at all. The Tribunal and Circuit Court erred in affirming the decision. Only because of DFAT report. 4. For the sake of argument, if I accept the chosen source of country information is fact (which it is not) then all the Bangladeshi citizens' applications should be refused. But in fact, many Bangladeshi applications from my political part BNP activists are approved based on genuine evidence, not on country information. So, there is error of law not to consider the merit of the application based on evidence and did not follow the principle of DIBP & Tribunal to assess the application case by case-based supporting documentary evidences. 5. The Minister delegate's (DIBP) & Tribunal decision record ('false document can be obtained'). The Tribunal rejected the country's information and accepted the evidence such as Vice President of [name redacted] Upozela, President of [name redacted] - Bangladesh Nationalist Party (BNP). Again, the Tribunal erred to reject the police case and arrest warrant which were based on hypothesis rather than fact. 6. I asked the Minister delegate (DIBP) and the Tribunal member to verify if these documents had any doubt. A simple phone call could have verified its authenticity. The Tribunal has a wide range of practice for phone calls to verify the documents without the applicant's request. But despite my request, the delegate (DIBP) and the Tribunal member ignored to verify the genuine documents and lead to the wrong decision not to rely on evidence. 7. The Minister's legal representative submitted my birth certificate to the Federal Circuit Court which is not relevant to the Court decision and is not randomly submitted in other cases. There is no age bar for the refugee applicant and such any indication is an error of law. There were then six authorities referred to.

Adjournment request 25 At the hearing, APK16 said that he was not in a position to address legal argument or explain issues raised by the paper and asked to be given time to obtain legal representation which he could not presently afford, noting that he had been represented previously. The Minister opposed an adjournment on the basis that there was no evidence as to any steps taken by APK16 to secure legal representation and an adjournment has no apparent utility such that it will be justified in the interests of the administration of justice. APK16 could not provide any estimate of time for which it would be appropriate to adjourn to allow him to obtain representation. Although it is true that APK16 has previously had legal representation, having regard to APK16's inability to suggest a timeframe in which he would be able to obtain representation, the Court determined that it was not appropriate to adjourn the proceedings.

The Minister's position in relation to matters raised by the paper 26 The Minister's representative sought to assist the Court by identifying the matters which he thought the paper raised, and concluded that the Minister would have no objection to the Court considering any matter raised in the paper which could be interpreted as having been raised in the Federal Circuit Court and the two grounds of appeal having regard to the fact that the appellant is not legally represented on the appeal. However, to the extent that new matters are raised, the Minister would oppose leave on two bases. First, there is no explanation for why new grounds are now proposed in circumstances where the appellant was legally represented in the Federal Circuit Court. Second and more importantly, the additional contentions have no prospects of success in circumstances where they appear to be supported by factual assertions that are irrelevant to the present proceedings. For instance, the claim that the Tribunal's findings were illogical, irrational or unreasonable are based on contentions (set out under the heading "grounds of review") about findings that the Tribunal did not, in fact, make. Similarly, the issue raised concerning misconstruction of the expression "political opinion" is devoid of meaning in circumstances where it has not been particularised.

Further adjournment request 27 When APK16 was given an opportunity to speak to his grounds of appeal and the paper, he stated that he was "very sick". The Court noted that he had not provided any medical evidence that he was unwell and APK16 explained that "with the proceedings I became sick" and that he felt faint. The proceedings were adjourned for 15 minutes. When he returned, APK16 appeared to submit that he remained subject to a warrant in Bangladesh and went on to say: "If I'm to travel now from the airport, I will be detained without any charge and I will be put into police custody. In that respect, if you give orders for me to return then I have to - I will be put up in jail once I return. That's all I have to say": T12.

Minister's oral submissions in response 28 The Minister's legal representative submitted that the matter raised in the appellant's oral submissions went only to impermissible merit review of the Tribunal's decision and otherwise relied on his written submissions. He noted one error in the primary judge's reasons which he submitted (and I accept) was not material to the appeal. At J[10], the primary judge stated that the Tribunal appeared to accept that APK16 had been assaulted as claimed but went on to note that he continued to live in the area, whereas at DR[35] the Tribunal stated that "[h]aving regard to the problems which I have had with [the appellant's] evidence I likewise do not accept that he was attacked by Awami League cadres on 27 November 2011, as he has claimed".

Ground one 29 This ground claims that the primary judge erred by failing to hold that the Tribunal erred by conflating the criteria set out in s 36(2)(a), which are Convention based, with those set out in s 36(2)(aa), the complementary protection criteria. As the Minister submitted, no ground that the Tribunal conflated those criteria was pleaded in the Federal Circuit Court. The primary judge therefore could not have erred in the manner suggested. 30 Leave is required for the appellant to rely on this ground. Factors which might be considered in determining whether leave should be granted are set out in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2015] FCAFC 134 at [166]. Justice does not demand that a new ground be considered if it lacks merit. 31 As submitted by the Minister, whether or not the Tribunal conflated its findings in relation to Convention based harm and complementary protection criteria depends on the facts of that case and reasoning of the Tribunal: see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57] per Robertson J. In this case, APK16 claims to fear harm from the Awami League because of his political opinion supporting the BNP and his activities on its behalf. The Tribunal made factual findings and relied on country information at DR[31]-[36] in rejecting these Convention based claims. None of the claims made by APK16 had a greater scope than this. Accordingly, the findings made by the Tribunal in relation to the Convention based claims were also dispositive of any claims he made for complementary protection. In any event, the Tribunal addressed complementary protection separately at DR[37]. Insofar as the Tribunal relied on its factual findings in the context of Convention based harm in concluding that the statutory criteria for complementary protection were not satisfied, it committed no jurisdictional error in doing so: see SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125 at [32] per Robertson, Griffiths and Perry JJ. Accordingly, this ground lacks merit and leave to rely on it in the appeal should be refused.

Ground two 32 I understand this ground to be that the primary judge erred by not finding that the Tribunal made a jurisdictional error by: (1) failing to accept APK16's claims of being persecuted in Bangladesh at the hands of the Awami League and police; (2) failing to accept the current situation in Bangladesh; (3) failing to accept that thousands of BNP workers were recently arrested and harassed by the Awami League "Government Authority"; and (4) "undermining" the danger he will face if he is compelled to return to Bangladesh as a returned asylum seeker in assessing the danger to him, by which I take APK16 to mean that the Tribunal minimised the danger that he would face if he returned to Bangladesh. 33 In relation to ground two, the Minister submitted that that ground was "fundamentally misconceived" because it was not part of the function of the primary judge to undertake merits review of the Tribunal's findings. The primary judge only had jurisdiction to assess whether the Tribunal fell into jurisdictional error. The Minister submitted that ground two merely illustrated dissatisfaction with the Tribunal's findings and revealed no jurisdictional error or appellable error by the primary judge. 34 While the Minister did not claim that this was a new ground it is difficult to see that it is comprehended in the grounds considered by the primary judge. In any event, the ground is not made out. 35 It is the Tribunal's obligation to determine whether it is satisfied that the criteria for a protection visa have been made out. It is apparent from the Tribunal's reasons that it carefully considered the appellant's claims to fear harm at the hands of the Awami League. The Tribunal accepted that the appellant was a member of the BNP and that he held the office of president of the Union BNP and vice president of the Upazila BNP. At DR[31], it found that the appellant did not embellish his role but did exaggerate his importance by claiming that he was famous as a political person and that this was why he was targeted by the Awami League cadres. It did this on the basis of the appellant's own evidence concerning the functions he had performed, which the Tribunal described as "pretty low level". It rejected his evidence concerning the claimed incident on 27 November 2011 because his claim that, following a beating by Awami League cadres, he fainted and was required to spend a week in hospital as a result "stretched credulity". Further it rejected the claim that Awami League cadres had been trying to attack him but had not been successful because he avoided them on the basis that he continued to live in the area and was living in his village immediately before he left Bangladesh. The Tribunal found that if the cadres had really been trying to attack him they would have had the opportunity to do so: DR[32]. For the same reason, had the police wished to find and arrest him in relation to the "false claim" they could have done so which did not support the appellant's claim that a "false claim" had been brought against him. This factor, together with country information concerning the prevalence of fraudulent documents in Bangladesh led the Tribunal to not accept that a false claim had been made: DR[33], [34]. The Tribunal relied on country information from DFAT to assess whether a person with the political opinion and profile which it found the appellant to have to assess the risk of harm the appellant would face if he returned to Bangladesh and continued his involvement in the BNP's activities at the level he had previously engaged in them and found that the risk did not meet the criteria in s 36(2)(a) relating to Convention based harm: DR[36]; or for complementary protection: DR[37]. 36 In my view, the Tribunal's findings were logically based on the material before it. It was entitled to take into account the DFAT and UK Home Office "country" information and to determine the weight which should be given to it in determining the appellant's claims: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. Further, I accept the Minister's submission that it was not open to the primary judge to engage in merits review of the claims made by APK16.

Grounds derived from the paper 37 The Minister's submission that some of the material recorded under the heading "AAT Decision and Reasons" could not relate to the protection visa application made by the appellant, although some matters do appear to be relevant. The matters that clearly do not relate are: (1) at [30], which suggest that Awami League cadres made an attack with knives and sticks when APK16's claim was that he was slapped and punched; (2) at [32], there is a suggestion that the Tribunal found that the appellant was "no more than a BNP supporter, and not politically active". There are similar references at [44], [46], [47] and [48]. In some of those paragraphs it is asserted that that was the basis for a Tribunal finding that because of this lack of engagement there would be no risk of return to Bangladesh. However, the Tribunal in APK16's case found that he was a BNP supporter, that had held offices in the Union BNP and Upazila BNP and that he had engaged in activities, albeit at a "pretty low level". The Tribunal also found that APK16 was likely to engage in those activities on his return to Bangladesh; (3) at [36], the suggestion that the Tribunal found that it was possible, though far from certain, that the appellant was persecuted because of political reasons. The Tribunal in APK16's case made no such finding; (4) at [38], the suggestion that ongoing threats were found not to have been linked to political opinion. APK16's case was not a case where incidents were found to have happened but to have a personal, not a political, character; (5) at [43], there is a suggestion that the Tribunal accepted that the police may have briefly detained and questioned an applicant about a meeting he attended. This does not appear to be reflected in the decision record in APK16's case. 38 Similarly, the material under the heading "Grounds of Review" appears to relate to a different case, in which the issue appears to have been whether the applicant held a "political opinion" at all, where he was found to be no more than a BNP supporter and where activities in Australia appear to have had relevance. These were not the issues in APK16's case. 39 The material under the heading "Conclusion" raises the issues of the Tribunal's decision not to give greater weight to documents he submitted to the Tribunal, its reliance on country information which indicated the prevalence of fraudulent documents in Bangladesh and its decision not to make enquiries in Bangladesh concerning the genuineness of a "false case" having been laid. Whether or not the paragraphs were derived from another matter, at least the last issue was considered by the primary judge. 40 It should be noted that in relation to the "false case" the Tribunal expressly said that it gave greater weight to the problems that the Tribunal had with APK16's evidence than the documents produced by him in relation to it. In light of country information which suggests that fraudulently obtained documents are prevalent in Bangladesh and the Tribunal's concerns about whether APK16 was in fact being pursued by the Awami League or the police because he remained in the area of his home village after November 2011 (when the alleged slapping incident occurred) and after August 2012 (when he says he found out about the "false case") until September 2013 without being further attacked or arrested, the Tribunal's concerns were logically based. It is a matter for the Tribunal whether it is satisfied by such evidence and the weight given to it. Further, as said by the primary judge, the appellant merely asserted that enquiries about whether a charge had been laid against APK16 might be made from public records which were readily available was not founded on evidence. The Tribunal did consider logistical issues about making such enquiries before it determined not to do so. On that basis, the primary judge found that APK16 had not established that such enquiries are ones about the existence of a particular and critical fact which could easily be ascertained and accordingly it was not an error for the Tribunal to fail to make the enquiries. Having regard to the High Court's decision in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39, that finding is one which the primary judge was bound to make. 41 Further, as indicated above, the Tribunal was entitled to determine on which country information it relied and the weight to be accorded to it. 42 I am not satisfied that there is anything raised in the paper which indicates appellable error by the primary judge.

Conclusion 43 The appeal should be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

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