ATK16 v Minister for Immigration and Border Protection

Tribunal's decision 17 The Tribunal did not accept the appellant's explanations for misidentifying, in his 20 August 2013 statement, the main antagonist of his troubles, that is, the Awami League rather than the BNP. The Tribunal also rejected the submission that what was said at the entry interview (concerning the appellant's fear of the BNP) was consistent with the appellant's current claim (concerning his fears of both the Awami League and the BNP). 18 The Tribunal concluded that the appellant intentionally claimed harm from the BNP but has subsequently changed his claims in view of the prevailing political climate in Bangladesh, where the Awami League is the governing party and its members and supporters are involved in much of the violence reported against the BNP. The Tribunal found that the appellant's claim that, in the end, he was persecuted by both parties was inconsistent with his claims, made in his revised statement and at the Tribunal hearing, that he was a member of the BNP. 19 The Tribunal referred to a letter from BNP attesting to the appellant's membership and active involvement in the party which, the Tribunal noted, was inconsistent with the appellant's original claims. The Tribunal recorded that it had put to the appellant that country information indicates that fraudulent documents are readily and easily obtainable in Bangladesh and together with the concerns the Tribunal had over the inconsistencies of his claims in general, this may cause the Tribunal to question the reliability of the statement provided by the BNP. 20 Ultimately, the Tribunal gave no weight to the statement from the BNP. 21 The Tribunal recorded the appellant's statement that he played no role in the BNP other than as a supporter and its opinion that the appellant had demonstrated little knowledge of the BNP (or indeed the Awami League). The Tribunal found that the appellant was not a member or active supporter of the BNP. 22 The Tribunal concluded that the appellant was not at risk of any serious harm on return to Bangladesh for reasons of his actual political opinion or any past or future involvement with the BNP. Similarly, the Tribunal did not accept that the appellant was or would be harmed by members and supporters of the BNP for being perceived to have joined the Awami League due to his non-attendance at BNP meetings. 23 The Tribunal considered the arrest warrant. The Tribunal expressed surprise that the arrest warrant was only produced to the Tribunal given the significance of such a document. The Tribunal found no plausible explanation as to why the appellant had not produced the arrest warrant and court documents earlier, as evidence of the problems he faces in Bangladesh. The Tribunal considered this to be a serious omission that reflected poorly on the appellant's credibility. 24 The Tribunal noted the appellant's post-hearing submission that the original documents were available and would assist in verifying that they were not fraudulent. 25 The Tribunal recorded at [100]: The Tribunal has examined these documents and acknowledges that they implicate the applicant, along with several other people, in charges made by an Awami League member. However, in the Tribunal's view the question is not whether the documents before the Tribunal are original documents or photocopies. As discussed with the applicant at hearing, the question is whether the documents are genuine. For all the above reasons, including the late submission of such relevant documentation dated in 2013, the inconsistency of the applicant's evidence in relation to why he did not have the documents in his possession earlier, together with the country information referred [to] above regarding the prevalence of fraudulent documentation in Bangladesh, the Tribunal does not find the arrest warrant, court documents and the letter from the applicant's Lawyer to be reliable evidence in this matter. The provision of what are claimed to be original documents does not overcome the Tribunal's concerns about the manner in which the documents were obtained. The Tribunal has given the documents no weight. In the absence of any other compelling information and in view of the significant credibility concerns already expressed in this decision, the Tribunal does not accept an arrest warrant has been issued in the applicant's name, that there are court proceedings pending against him or that he has anything to fear on return to Bangladesh for this reason. 26 The Tribunal was not satisfied that there was evidence to establish that the applicant would be arrested, imprisoned and harmed on his return to Bangladesh. 27 The Tribunal was therefore not satisfied that the appellant satisfied the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) ("Act") for a protection visa. 28 The Tribunal also considered the appellant's claims against the complementary protection criterion in s 36(2)(aa) of the Act and found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh, there was a real risk that he would suffer significant harm for the reasons claimed or any other reason. Therefore, the Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under s 36(2)(aa) of the Act.

The FCCA decision 29 In the FCCA, the sole ground of review was that the Tribunal "failed to afford the Applicant procedural fairness as required by Sections 424(A) and 424(AA) [sic] of the Migration Act and in doing so failed to exercise its jurisdiction". 30 Section 424A provides: (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non‑disclosable information. (4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F). 31 Section 424AA provides: (1) If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so - the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F). 32 The FCCA judge identified the nub of the appellant's attack on the Tribunal's decision (at [3] of his Honour's reasons) as that: …the Tribunal, having requested and been provided with the originals of the documents, most particularly to the arrest warrant and the letter from the BNP after the hearing, found that they were not genuine. It was asserted that sections 424A and 424AA required the Tribunal to give notice of the reasons for finding these documents were not genuine. 33 The FCCA judge rejected the appellant's application for the following reasons: 13. The applicant's counsel submitted that having invited provision of original documents - and I emphasise original - that the Tribunal implied that it would be a determining factor in the Tribunal's decision whether or not the documents were genuine. The submission from counsel went on to say that if, having given such an implication, the Tribunal was obligated to provide reasons for its thinking and invite submissions from the applicant. 14. I do not accept that the Tribunal's letter of 19 February 2016 contained any such implication. In my view, the proper interpretation of that letter is that it is merely an agreement to receive further documents provided by the applicant, in response to a request from the applicant. The applicant's letter, or at least the applicant's migration agent's letter of 15 February 2016, showed an awareness of that concern and, in my view, the Tribunal, once it indicated that there were reasons based on country information for doubting the genuineness of documents such as the documents put forward by the applicant, was not required to provide reasons for doubting the genuineness of the particular documents. It appears to me that the specific is subsumed in the general in this case. 15. Nevertheless, the Tribunal has, on my reading of its decision, and this is supported by the migration agent's letter of 15 February 2016, indicated that its general concerns about the genuineness of the documents were based on the inconsistent narrative of the applicant at various times, the late appearance of the documents and the country information that such documents were commonly forged. All of those matters were clearly flagged to the applicant in the Tribunal and, in my view, there was no further requirement for the Tribunal to set out further the reasons for its doubts about the credibility of the applicant himself and the genuineness of the documents he put forward. 16. I also accept the respondent's submission that disbelief of an applicant is not information that is subject to the requirements of section 424A or section 424AA, and I refer to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; [2007] 235 ALR 609 at paragraphs [sic] [18] for that proposition. For these reasons, I dismiss the application.

Appeal to this Court 34 The appellant filed an 11 page submission. 35 At the hearing of the appeal, the appellant appeared unrepresented with the assistance of a Bengali interpreter. He provided an additional written submission to the Court, and made brief oral submissions.

Grounds 1 and 2 of notice of appeal 36 Ground 1 does not engage with the decision of the FCCA judge. The application for review to the FCCA was concerned with alleged denial of procedural fairness and the Tribunal's finding that documents provided to the Tribunal were not genuine. 37 Insofar as the appellant is suggesting that the Tribunal did not have any evidence to rebut his claims, adverse credibility findings do not require positive evidence. A Tribunal may disbelieve evidence because of inconsistencies or surrounding circumstances: cf. WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [17]. 38 To the extent that the appellant takes issue with the Tribunal's credibility findings, the appellant did not identify any basis on which the Tribunal erred in reaching those findings. The Tribunal's findings were open to it and it gave cogent reasons for making them. 39 As to ground 2, no relevant recent High Court decision was identified by the appellant or by Ms Griffin, the solicitor who appeared for the Minister. Accordingly, ground 2 must fail.

Ground 3 of notice of appeal 40 Ground 3 does not identify any appellable error by the FCCA judge. 41 Insofar as ground 3 seeks to take issue with the FCCA judge's reasons, I accept the Minister's submission that the FCCA judge was correct for the reasons that his Honour gave, set out at [33] above. 42 Insofar as ground 3 takes issue generally with the conduct of the review proceedings by the Tribunal, the Minister submitted that the Tribunal conducted the proceedings in compliance with Pt 7, Div 4 of the Act, which codified the requirements of natural justice for decisions of this kind: s 422B of the Act. I accept that submission for the following reasons: (1) First, the Tribunal complied with its obligation under s 425 of the Act to invite the appellant to give evidence and present arguments at a hearing on the issues arising on the review. This included its concerns arising from country information before it, that there was a prevalence of document fraud in Bangladesh. (2) Second, according to the Tribunal's reasons, it advised the appellant at hearing that it had "serious concerns about the credibility of significant aspects of his claims and evidence". (3) Third, there was no information required to be put to the appellant in accordance with s 424A(1) of the Act, other than the country information relating to the prevalence of document fraud in Bangladesh, which the Tribunal did put to the appellant.

Appellant's affidavit affirmed 31 October 2016 43 In his affidavit filed with this Court on 4 November 2016, the appellant complained that the FCCA judge: (1) dismissed his application for review without giving any reasonable grounds; (2) failed to take into account all relevant grounds; and (3) breached the rules of natural justice and procedural fairness. 44 The appellant did not identify any matters that support these complaints. No such errors are apparent from the judgment given by the primary judge.

Appellant's oral submissions 45 At the hearing of the appeal, the appellant sought additional time to obtain legal representation. I refused that request because there was no reason to think that the appellant would be able to secure legal representation in the foreseeable future. 46 The appellant submitted that the Tribunal had failed to understand his situation but did not identify any particular error in the Tribunal's understanding. This submission does not reveal any appellable error by the FCCA judge.

Appellant's 11 page written submission 47 This submission alleges multiple errors by the Tribunal which were not raised before the FCCA. It does not bear any obvious relationship to the grounds in the notice of appeal. 48 An appellant may be permitted to raise grounds on appeal that were not raised before the FCCA, in certain circumstances: Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14 at 18 to 20; [4] to [6]. 49 To the extent that the written submission sought to identify appellable errors by the FCCA judge, the errors related to matters that were not in issue in the FCCA (where the appellant was legally represented), including a failure to find that the Tribunal failed to apply the correct test of persecution in relation to the complementary protection claim, a failure to find that the appellant was denied procedural fairness because he was "not given enough time through which [he] could expand [his] arguments" and because he was "misled" into believing that the Tribunal had read certain documents, and a failure to find that the Tribunal "did not take up and separately deal with the factual issues". The submission also contended that the Tribunal made its decision with a closed mind, and that there was no evidence or other material to justify the Tribunal's decision. 50 I have considered the written submissions and I am not satisfied that they raise any issue which ought to be considered on the appeal. In particular, the appellant did not identify any basis for a conclusion that the Tribunal made a legal error in disbelieving the appellant's claims for protection.

Appellant's additional written submission 51 The additional written submission also does not bear any obvious relationship to the grounds in the notice of appeal. It repeats the contention that the FCCA judge failed to hold that the Tribunal committed jurisdictional error when it failed to apply the correct test in relation to the complementary protection provision contained in s 36(2)(aa) of the Act. 52 The submission also contends that the Tribunal failed to take into account unspecified relevant considerations. 53 The submission does not develop either of these contentions, but makes other complaints about the Tribunal's procedure and its findings of fact. I have considered the written submissions and I am not satisfied that they raise any issue which ought to be considered on the appeal.

Conclusion 54 The appeal must be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.