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[2019] FCA 190
Federal Court of Australia
2019-02-27
Derrington J
Original judgment source is linked above.
Introduction 1 This is an appeal from a decision and orders of the Federal Circuit Court of Australia (FCC) made on 15 October 2018. The primary judge refused the appellant's application to amend the grounds of his application for judicial review which had been filed on 21 April 2016. The appellant had abandoned reliance on the existing grounds and, consequent upon the refusal to allow the amendment, the learned primary judge dismissed the application. 2 Although the appellant filed a Notice of Appeal, he did not seek leave to appeal the order of primary judge refusing him leave to amend the application for review.
Background 3 The issue in question is quite narrow. As such, only some brief background facts are necessary. 4 The appellant is a citizen of Bangladesh who arrived in Australia as an "unauthorised maritime arrival" on 28 March 2013. 5 He lodged an application for a protection visa on 1 July 2013 and a delegate of the Minister for Immigration and Border Protection (the delegate) refused that application on 22 September 2014. 6 On 1 October 2014, the appellant applied to the Refugee Review Tribunal, which is now the Administrative Appeals Tribunal (the Tribunal), for a review of that decision. 7 In his application for a protection visa the appellant essentially made two claims: (a) that his father was a business owner and supporter of Jamaat-e-Islami (JI) such that he would have an imputed political opinion as a supporter of JI and as an opponent to the Awami League whom he fears will persecute him; and (b) he fears returning to Bangladesh because of a land dispute with his paternal uncle and cousin. He claimed that those persons were powerful Awami League members and he would be affected by the imputed political opinion due to his father's affiliation. 8 Central to the appellant's claim was that his paternal uncle (referred to as "N") had inappropriately procured the transfer of ownership of his grandmother's house into his name a few days before she died. He says that he and his family, including his father, were living in the house at the time and, consequent upon the grandmother's death, his uncle and his uncle's son (being his cousin) (referred to as "M") threatened to evict them. He further claims that as he was going to the police station to make a formal complaint about the conduct of N and M, he was attacked by a number of people who severely beat him. He said that he sustained injuries which required his admission to hospital for 15 to 16 days. He asserted the attack was orchestrated by N and M because of his opposition to their misappropriation of his grandmother's house. 9 Consequent on the alleged attack the appellant claims he went to stay with other family members in their homes. He says his uncle and cousin continued to search for him with the consequence that he arranged to leave Bangladesh in April 2012. 10 The Tribunal conducted a hearing at which the appellant appeared on 13 January 2016. During the course of that hearing he stated that his fears were restricted to the circumstances of the property dispute with his uncle. 11 Subsequent to the hearing on 25 February 2016, the Tribunal sent the appellant a letter inviting him to comment on or respond to information pursuant to s 424A of the Migration Act 1958 (Cth) (the Act). In its letter the Tribunal set out "information" which it identified would be the reason, or part of the reason, for affirming the decision under review as: A country information request (CI151222164859994) regarding Awami League membership in Bangladesh located no information on the Awami League and the names [M or N] or the office/s of leader or Chairman in [X] Village. Sources consulted were CISNET, Twitter and internet sites (including Bangladesh Awami League http://www.albd.org/index.php/en/home). 12 The letter went on to advise: This information is relevant to the review because it does not support your claims that [M and N] are powerful/influential people in the local Awami League. 13 After a number of extensions of time negotiated by the appellant's migration agent, Mr Hossain, a response to the s 424A letter was sent. The response, prepared in Mr Hossain's office or by his staff, was contained in a written, seven page statement by the appellant. It referenced a number of additional documents which were also sent to the Tribunal. The written statement included a lengthy discussion identifying the activities of N and M and the part that they played in the Awami League. After identifying those roles and the level at which those persons participated the appellant said: For that reason Union Parishand chairman's name does not appear in the party list or the Party website. So I think there is a valid reason not to find the Union Parishand Chairman [N's] name on Awami League document and website and from other sources. 14 This response reveals that the appellant was acutely aware of the Tribunal's concerns identified in its s 424A letter. His response shows that he was aware that the Tribunal had raised that its internet searches were not able to reveal that N, who was the alleged chairman of the Awami League party in the appellant's village and a powerful person, held that position as one might expect an internet search to reveal. The appellant was able to give an explanation as to why that was so. There is nothing in the response which suggests that he was unsure or uncertain of the Tribunal's concerns or that he did not have sufficient particulars of the information in order to respond to it. 15 On 1 April 2016 the Tribunal affirmed the delegate's decision and delivered extensive reasons as to why it reached that conclusion. Those reasons disclosed that the Tribunal did not accept much of the appellant's evidence and, specifically, that his uncle or cousin were powerful or politically connected as he had claimed. It also rejected his account of sustaining injuries in an attack and needing to spend 15 to 16 days in hospital. In relation to its conclusion that the appellant's uncle and cousin were not powerful or politically connected, it noted that the appellant had provided vague descriptions of their alleged roles in the Awami League and that the Tribunal was unable to locate any information to support his assertions. 16 There is no need to traverse the other findings of the Tribunal. It is sufficient to say that it disbelieved, as being highly implausible, many aspects of the appellant's claim. It found that he fabricated his claims concerning the confiscation of his grandmother's property in order to gain protection in Australia. 17 Although the Tribunal noted the appellant had limited his claims at the hearing to fear surrounding the disputed property, it nevertheless considered whether he may suffer harm because of any imputed political opinion arising from his father's support for JI. In that respect it was not satisfied that the appellant's father was a supporter of JI or that he supported a different political party to that of his brother. It also found, in the alternative, that independent Country Information did not support a claim that membership of JI would give rise to a well-founded fear of persecution in Bangladesh. The appellant's father was not identified as a leader or a high profile supporter of JI.
Application for review to the Federal Circuit Court 18 The application for judicial review of the Tribunal's decision was filed on 21 April 2016. For reasons which are not clear the matter was not heard expeditiously and on 2 March 2018 the appellant filed an amended application which contained a single ground of review. 19 The matter was called on for hearing on 9 March 2018 and, although the matter had been listed for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth), it proceeded by way of a hearing of the application for leave to amend the application to review. The appellant confirmed that he was abandoning the grounds in the original application with the consequence that if leave was refused the Court would not be required to consider those grounds. 20 The primary judge refused to grant leave to amend the application and it was dismissed. 21 The argument advanced to the FCC was that at its hearing, the Tribunal put to the appellant that its independent research had not identified that the appellant's cousin or uncle were leaders of the Awami League or that his uncle was a chairman of the party in his area. The appellant claimed that the Tribunal was required to put this information to him at the hearing under s 424AA of the Act. He submitted that the Tribunal had not done so because it failed to provide clear particulars about the independent research which had been undertaken. He further said that the letter dated 25 February 2016 also did not provide adequate particulars of the information. 22 The primary judge rejected the appellant's submissions. He found that s 424AA was not enlivened merely by the Tribunal making a statement at the hearing. The asking of such questions was merely one of the methods by which the obligation to provide a fair hearing might be performed. The primary judge considered that the real question was whether s 424A of the Act was enlivened in the circumstances. He held that it was not because the methodology employed in the Tribunal's research was not "information" for the purposes of s 424A and because it did not involve a rejection, denial or undermining of his claims. His Honour also found the absence of information arising from independent research was not "information" for the purposes of s 424A: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (SZBYR). It followed that the appellant was not denied procedural fairness because the Tribunal squarely put to him both orally and in writing that no information had been located on his relatives in connection with the Awami League. 23 Consequently the application to amend was refused and the application for review was also accordingly dismissed.
Appeal to this Court 24 The Notice of Appeal to this Court is identical to that which was agitated before the primary judge. In response to it the Minister filed an Objection to Competency pursuant to r 36.72(1) of the Federal Court Rules 2011 (Cth) on the basis that the appellant seeks to appeal the interlocutory order of the primary judge refusing leave to allow him to amend his application. Such a challenge requires leave under s 24(1A) of the Federal Court of Australia Act 1976 (Cth): BXU16 v Minister for Immigration & Border Protection [2018] FCA 1897, [2]. The appellant has not sought leave in this case and even if he had, his application would be out of time. No affidavit has been filed which identifies why the application for leave to appeal was not filed within time in compliance with r 35.14(3)(c)(ii) of the Federal Court Rules. 25 However, if the proposed ground of review has substantial merit, it is likely that the requirements for an application for leave would be met. At the hearing of the appeal the submissions were generally concerned with the merits of the proposed ground. 26 Central to the proposed appeal are the obligations of the Tribunal in s 424A(1) of the Act which 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. 27 The operation of this section was considered by the High Court in SZBYR. There the Court held that the expression "information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review" is information which in its terms involves a rejection, denial or undermining of the appellant's claim to be a person to whom Australia owed protection obligations (at [17]). 28 In the above respect the Minister argues that the research conducted by the Tribunal did not, in terms, deny or undermine the appellant's claims. It was the result of the research, being that there was no information on any connection between the appellant's uncle and cousin and the Awami League, which adversely impacted the appellant's claims. The Minister also relied upon the submission that the absence of evidence or information is not a matter which had to be disclosed under s 424A as it was not "information" for the purposes of that section. In particular he relied upon [18] of the reasons in SZBYR which were: Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": … does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc … If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. (footnote omitted) 29 It can be accepted that the absence of any information available to the Tribunal is not "information" within s 424A(1). That being so, as the Minister submits, the result of the research, being the absence of any information, is not within the scope of the section. 30 That said, the reference to "absence of evidence" in SZBYR might properly be taken as a reference to the failure of the applicant to provide information. The Tribunal would not be obliged to put to the applicant its concerns about the lack of material on any particular aspect of the appellant's claim. However, that may not necessarily be the position in this case. Here there is evidence of the positions held in the Awami League by the appellant's uncle and cousin. That evidence came from him. The Tribunal sought to test that allegation by undertaking research. It was not able to find any information which supported the conclusion. In this respect it might be said that the absence of any corroborating evidence from sources where such evidence might be expected would be, of itself, information to which s 424A might apply. If the information discovered was that the uncle and cousin were not in the Awami League that information might have to be put to the appellant. Information which inferentially gives rise to the same consequence might be seen in the same category. 31 It is not necessary to reach a final conclusion on that question. Even if it were assumed in favour of the applicant that the result of the research undertaken by the Tribunal was "information", it was given to him in accordance with the requirements of s 424A. 32 The letter of 25 February 2016 from the Tribunal provided clear particulars of the information in respect of which the Tribunal was concerned. It identified that searches were undertaken, it identified the places where the searches were conducted and it identified the result. Further, the letter made it clear why the information was relevant to the review and the consequences of it being relied upon. The letter also invited the applicant to respond. As indicated above, it is apparent from the applicant's response that he was aware of the information being considered by the Tribunal, its importance to the review and his entitlement to respond. He did respond and sought to explain why the internet searches failed to disclose any mention of his uncle being involved in the Awami League. He also discussed the activities of his cousin, M, at length. 33 The appellant's written submissions filed in the appeal focused on the sufficiency of the particulars of the information provided by the Tribunal. However, he did not identify in writing or orally during the appeal how the particulars were not sufficient. Necessarily, the particulars provided must be appropriate to enable the appellant to suitably respond to the Tribunal's inquiry. In this matter, the fact that the appellant's response to the s 424A letter sought to give an explanation for the exact query raised by the Tribunal demonstrates that the particulars were sufficient. They were obviously adequate to enable the appellant to respond in detail to the Tribunal's concerns. 34 It follows that the information on which the Tribunal intended to rely was identified and clearly put to the appellant, who was given the opportunity to respond. Therefore, assuming there was an obligation to comply with s 424A, it was complied with by the Tribunal and no jurisdictional error arose.
Disposition of the matter 35 As mentioned, the Minister filed an Objection to Competency in respect of the appeal. That should be upheld. In order to succeed, the appellant required leave to appeal the decision of the primary judge not to grant leave to amend the application for review. That leave should not be granted because there is no merit in the proposed ground of appeal. 36 The necessary result of the above is that the appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.
AXX16
Minister for Home Affairs
(2007) 81 ALJR 1190