ARX16 v Minister for Immigration and Border Protection

The Tribunal proceeding 3 The Tribunal considered whether the applicant met the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), on the basis of being a refugee, or the criteria in s 36(2)(aa), on the basis of there being substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he would suffer significant harm. 4 The applicant claimed to meet both sets of criteria on the basis that he and his family had been harassed and extorted by the Sarbahara Party since 2012. He claimed that members of the Sarbahara Party had come to his family home in Bangladesh twice. On the first occasion, the applicant said that there were about 15 men who asked him for money and broke things in the house searching for money. When he told the men that there was no money, the applicant claimed that he was told that if he did not give them money in a week he would be killed. He further claimed that on the second occasion, a week later, about 15 different men came to the family house during the night and attacked his family. He said that his mother gave them some money and that the men then left but threatened to return. The applicant said that he fled the village a week later. On the question of why the men targeted him, the applicant said that he was not sure but that it was possible that they had found out that his family's farm was doing well or, alternatively, that his brother was politically active within the Bangladesh Nationalist Party (BNP). 5 In determining that the criteria in s 36(2)(a) were not met, the Tribunal made adverse findings on the credibility of the applicant and the veracity of his evidence. Specifically, the Tribunal identified several inconsistencies in the applicant's evidence, considered the evidence to lack significant details and was "overall vague and general" (Tribunal's reasons at [24]-[25]). On the basis of those factual findings, the Tribunal was also not satisfied that the criteria in s 36(2)(aa) could be met.

The FCCA proceeding 6 The applicant sought judicial review of the Tribunal's decision in the FCCA. For the purposes of a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth), the applicant contended (in summary form, and correcting the understandable grammatical and related errors) that: (a) The Tribunal erred in law in not finding that the applicant was a victim of persecution for his political beliefs as an activist of the BNP and that he was a target of the Sarbahara Party prior to his departure from Bangladesh. (b) The Tribunal denied the applicant procedural fairness by not considering that he was physically abused for his political beliefs; that his life was at risk; and that he was forced to leave Bangladesh because his life was at risk. (c) The Tribunal erred in not finding or accepting that he was persecuted in Bangladesh and that he would be imprisoned and tortured if he were returned to Bangladesh. (d) The Tribunal erred in law and committed jurisdictional error because it did not find that the applicant had a genuine fear of persecution for the purposes of s 36(2) of the Act. 7 The primary judge dismissed the application. His Honour held that: (a) Ground 1 failed at the factual level, as the applicant had not contended before the Tribunal that he was active within the BNP. (b) Ground 2 impermissibly impugned the Tribunal's credibility findings. (c) Grounds 3 and 4 sought impermissible merits review of the Tribunal's decision. (d) Ground 5 sought impermissible review of the merits of both the Tribunal and the delegate's decisions. 8 Accordingly, the primary judge, being satisfied that the application failed to raise an arguable case for the relief claimed, dismissed the application with costs.

The applications in this Court 9 An application for leave to appeal must be filed within 14 days of the publication of the judgment or the making of the relevant orders: Federal Court Rules 2011 (Cth) (the Rules), r 35.13. The applicant filed his application for leave to appeal and an application for extension of time in this Court on 11 November 2016, 31 days after the expiration of the prescribed period. 10 The draft notice of appeal specifies the proposed grounds of appeal as follows: 1. The honourable Federal Circuit Court judge erred in law to come to a decision dismissing my application not finding that the Administrative Appeals Tribunal did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party and also I was target of terrorist group Sarbahara Party prior to my departure from Bangladesh. 2. The honourable Federal Circuit Court judge did not find that there was lack of procedural fairness in the decision of the Administrative Appeals Tribunal to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application. 3. The honourable Federal Circuit Court judge made error to find that the Administrative Appeals Tribunal failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing. 4. The honourable Federal Circuit Court judge erred in not finding that the Administrative Appeals Tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa. 5. The honourable Federal Circuit Court judge erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated. (Errors in original.) 11 The application for an extension of time and leave to appeal states a further two grounds, being, in essence, an unparticularised procedural fairness ground and a claim that the primary judge did not give any weight to the supporting documents lodged by the applicant in support of his claim. 12 The applicant did not file any written submissions in support of the applications before this Court, nor did he wish to make oral submissions about the errors contended for in his application at the hearing before me on 8 March 2017. When asked if he wished to add anything to the written documents filed with the Court, he stated, via his interpreter: THE INTERPRETER: I just want to say I came here to stay and I want to be here. If I go back, I will be killed there. HIS HONOUR: Is there anything further that you want to say about any error that you say that the Federal Circuit Court judge made? THE INTERPRETER: I don't know. How would I know? I don't even - my English is not even good. How would I know who made what error and what's that? I don't know all that.

Extension of time 13 The Court has a general power to extend a time fixed by the Rules: r 1.39. At the hearing of these applications on 8 March 2017, the Court asked the applicant to provide a reason for the delay in filing, to inform the Court's decision as to whether the 14-day time limit should be extended. The applicant initially stated that he had attempted to file the application within the prescribed period but that it had not been accepted. I took this to mean that the application had been rejected by the Registry of this Court. When he was asked when he had attempted to file the application, he said that he had tried to do so one month prior to the hearing on 8 March 2017. That could not have been so, given that the application was accepted for filing in this Court on 11 November 2016. The applicant also said that he had seen a lawyer around four days prior to entering detention, which, on the applicant's account, occurred on 1 February 2017, and that the lawyer had provided him with the relevant forms to be completed. As I understood it, the applicant sought to explain the delay in filing on the ground that he had been following the lawyer's advice. However, that too cannot have been within the relevant time frame. The applicant must have had an application before the Court in February 2017 because timetabling directions were made by a Registrar on 18 November 2016. When asked to clarify his explanation, the applicant reverted to his earlier explanation that he had filed the application within 14 days of the primary judge's decision. Had the applicant done so, it is difficult to imagine why he would have seen fit at that time also to apply, as he did, for an extension of time to bring the application for leave to appeal. 14 The applicant is unrepresented and does not speak English. Accordingly, he may well have had difficulty understanding the Court's processes and any advice given to him by the lawyer with whom he spoke prior to the hearing of these applications. However, as outlined above, there are inconsistencies in the applicant's explanation for the delay in filing, to which he has been unable to provide an adequate response. That being so, I may not have regarded those inconsistencies as fatal, had the prospective appeal had any merit.

Application for leave to appeal 15 In order for the applicant to obtain leave to appeal, I must be satisfied that in all the circumstances, the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal and, assuming that the decision is wrong, that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9. 16 With respect to the grounds directed to the Tribunal's adverse credibility findings, the primary judge, rejecting the claim below, noted (at [19]) that "[i]t is well settled that credibility is a factual determination for the Tribunal": citing Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423; [2000] HCA 1 (McHugh J). While that is so, that is not to say that adverse credibility findings can never be impugned on the basis of jurisdictional error. As the Full Court of this Court observed of McHugh J's observations in Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423; [2000] HCA 1 at [67], in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (at [37]): It is important to note that McHugh J's observations and his Honour's use of the phrase "par excellence" were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal's adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. 17 Except to the extent that ground 2 of the draft notice of appeal contends that the applicant was denied procedural fairness before the Tribunal, the applicant does not challenge the Tribunal's adverse credibility findings on the basis of some alleged jurisdictional error. Rather, each ground that adverts to the Tribunal's findings on credit merely cavils with the merits of the Tribunal's decision. I can see nothing in the Tribunal's factual findings that reveals a jurisdictional error of the kinds discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (see [38]). 18 I can also see no basis for the applicant's contention that he was denied procedural fairness. The applicant was given ample opportunity to respond to the Tribunal's questioning in respect of critical aspects of his claim. The Tribunal put to the applicant what it considered to be inconsistent and implausible evidence and found his responses (namely, that the events in question had occurred some time ago and that the inconsistencies might be due to interpreting error) to be insufficient. Having been unsatisfied with the applicant's responses, the Tribunal proceeded to make findings on credit that were, in my view, open on the material before the Tribunal. 19 The applicant's unparticularised claim (in the application for leave to appeal) that the primary judge did not give any weight to his supporting documents misapprehends the nature of the FCCA's function on appeal. It was not open to the primary judge to revisit the merits of the Tribunal's factual findings, which his Honour noted: primary judge's reasons at [20], [22]). Moreover, the applicant did not lodge "supporting documents" with the primary judge, so I take the reference to that expression to be a reference to the applicant's written submissions which were filed and relied on before the primary judge. But they were taken into account by the primary judge, something which is readily apparent from [15] and [22] of the primary judge's reasons. No error is therefore demonstrated or arguable.

Conclusion 20 For the reasons given above, I am not satisfied that the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal. In those circumstances and in the absence of any sufficient explanation for the delay, I refuse the application for an extension of time to file the application for leave to appeal. The applicant should pay the first respondent's costs, to be agreed or assessed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.