BAP17 v Minister for Immigration and Border Protection

Background 5 The applicant is a citizen of Bangladesh. He arrived in Australia as an unauthorised maritime arrival on 26 April 2013. He was interviewed on 15 May 2013 and claimed that he feared harm from the Awami League due to his involvement with the Shabir political party. He made various claims of being kidnapped and tortured and subjected to false charges in Court. At that time he claimed he had been married previously. 6 On 26 July 2014, he applied for a protection visa. Pursuant to s 45AA of the Migration Act 1958 (Cth) (Migration Act) and reg 2.08F of the Migration Regulations 1994 (Cth) (Regulations) the application for a protection visa was required to be treated as an application for a "temporary protection visa". As mentioned, his grounds for claiming protection concerned his membership of the Shabir political party. He claimed fear from the Awami League due to his support for that party and, alternatively, fear from the party itself because he had left it. 7 During the process before the delegate the applicant reiterated his claims although, at an interview on 10 September 2014, he expressed dissatisfaction with his then migration agent and the manner in which his claims had been advanced and he sought a rescheduling of the interview. Subsequently, he sent further information to the delegate. In it he reaffirmed the truth of his earlier statement and added additional claims being that he feared harm in Bangladesh on the basis of his homosexuality. He also provided various documents which he claimed supported his case. Although a further interview was scheduled the applicant did not attend. As a result, on 25 May 2015 the delegate found that it had not been possible to test the applicant's claims in an interview and she was unable to make any relevant findings of fact on the written statements such that his claim was rejected in its entirety.

Tribunal hearing 8 On 9 June 2015, the applicant applied to the Tribunal for a review of the delegate's decision. Subsequently, he provided a written statement to the Tribunal in which he alleged that his previous statements contained incorrect information, that the new statement was his final statement and his previous statements were null and void. In this statement his claim for a protection visa was founded upon his fear of harm in Bangladesh due to his homosexuality and he detailed his past relationships, and in particular, one with a man named Hanif. 9 A Tribunal hearing occurred on 25 October 2016 and the Tribunal made its decision on 14 February 2017 in which it affirmed the delegate's decision. 10 It is not necessary to detail the extensive reasons of the Tribunal. It is sufficient to note that it determined that the applicant had continuously changed the basis of his claims and that he had not given a credible explanation for that. The Tribunal identified the numerous inconsistencies in the applicant's accounts and undertook a detailed consideration of the information provided at the applicant's entry interview. The Tribunal set out at length these inconsistencies and the foundation for its rejections of his explanation for the inconsistencies. Overall, the Tribunal concluded that the applicant had not given a truthful account of his experiences or the reasons why he was seeking protection. In particular it rejected: (a) The ground that the applicant was a homosexual; that he had been in relationships with a number of men in Bangladesh; or, that he was ever harmed as a consequence of his actual or perceived sexual orientation or because he was perceived to be anti-Muslim. (b) That the applicant was ever a member of the Shabir political party; or, that he was ever harmed by people from that party or from the Awami League. 11 Whilst the applicant, from time to time, claimed that his inconsistencies were due to his mental health problems, there was no medical certificate or evidence to support that assertion. Indeed, the only medical evidence available indicated that his cognition was not impaired. The Tribunal disbelieved him that his mental condition caused the inconsistencies in his several statements. 12 The Tribunal found that reports or letters from the applicant's doctor also undermined his claims. In particular, the treating psychiatrist perceived that the applicant's stresses were caused by him being a victim of political persecution and/or torture by the Awami League. However, that claim had previously been retracted by the applicant. Additionally, the medical reports made no mention of his claim of being a homosexual which he asserted were his main stressors. In that way, the evidence which he was giving to the medical practitioners contemporaneously with that given to the Tribunal was inconsistent. 13 At paragraph 36 of the reasons of the Tribunal it determined that the applicant's claims could not be believed. It said: Therefore, for the reasons stated above, the Tribunal does not accept that the applicant identifies as homosexual, or that he was in a relationship with another man from his district Hanif and that this relationship was discovered and for this reason the applicant was forced to flee Bangladesh. Consequently the Tribunal does not accept any of the applicant's claims to fear harm that arise from his homosexuality. It is not accepted that he was subject to harm in the past from his family, his fellow villagers, school committee, landlord, homophobes, religious leaders or the police in Bangladesh. It is not accepted that there are any charges, cases or police proceedings outstanding against the applicant for this reason. It is not accepted that the police or authorities would have any interest in the applicant should he return to Bangladesh for this reason. It is also not accepted that the applicant would be of any interest to religious fundamentalists or homophobes if he was to return to Bangladesh now or at any time in the future for this reason. It is also not accepted that the applicant's family would wish to harm him because he is homosexual or that he has brought shame upon the family in the past for the reasons he has claimed. The Tribunal also does not consider that the applicant would be at risk of any harm in the future for this reason were he to return to Bangladesh. 14 The justifiable determinations not to believe him had the result that the Tribunal was not able to detect any valid ground which might warrant the granting of a protection visa. At paragraph 43 it held: The Tribunal has considered the applicant's various claims of political persecution and overall due to the multiple concerns about the applicant's credibility, as previously discussed and set out above, the Tribunal does not accept any of the claims by the applicant of past harm from the Awami League or the Shibir. The applicant has constantly changed his evidence in relation to these matters. He has purported to withdraw many of these claims yet at the Tribunal hearing he was provided shifting evidence as to whether these events occurred and if there were incidents of past harm that occurred to him in Bangladesh. The applicant has conceded in part that some of his documents were false and the Tribunal is not satisfied that any of the evidence that he has provided in relation to these matters is genuine. Therefore the Tribunal does not accept as genuine the First Instance Report provided by the applicant or the article in the Weekly Shamsernagar dated 6 November 2012. 15 Before the FCC the applicant relied upon eight grounds of review. Many of those are replicated in the present notice of appeal. By and large they concern the factual determinations of the Tribunal and seek to raise factual questions about their accuracy. 16 One matter raised before the FCC, which is of some import, is the manner in which the Tribunal treated the applicant's application. As mentioned, his application was treated as an application for a temporary protection visa rather than an application for a protection visa. 17 The learned FCC judge identified this issue and explained that the operation of s 45AA of the Migration Act and reg 2.08F of the Regulations had the effect of deeming his application for a protection visa as an application for a temporary protection visa (Class XD). This deeming provision is found in reg 2.08F which relevantly provides: Conversion regulation (1) For section 45AA of the Act, despite anything else in the Act, a valid application (a pre-conversion application) for a Protection (Class XA) visa made before the commencement of this regulation by an applicant prescribed by subregulation (2) is, immediately after this regulation starts to apply in relation to the application under subregulation (3): (a) taken not to be, and never to have been, a valid application for a Protection (Class XA) visa; and (b) taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant. Prescribed applicants (2) The following are prescribed applicants: (a) an applicant who holds, or has ever held, any of the following visas: (i) a Subclass 785 (Temporary Protection) visa granted before 2 December 2013; (ii) a Temporary Safe Haven (Class UJ) visa; (iii) a Temporary (Humanitarian Concern) (Class UO) visa; (b) an applicant who did not hold a visa that was in effect on the applicant's last entry into Australia; (c) an applicant who is an unauthorised maritime arrival; (d) an applicant who was not immigration cleared on the applicant's last entry into Australia. When this regulation starts to apply (3) This regulation starts to apply in relation to a pre-conversion application immediately after the occurrence of whichever of the following events is applicable to the application: (a) if, before the commencement of this regulation, the Minister had not made a decision in relation to the pre-conversion application under section 65 of the Act - the commencement of this regulation; 18 The FCC determined that the Tribunal correctly found that by the operation of s 45AA and reg 2.08F the applicant's protection visa application was taken to be a valid application for a temporary protection (Class XD) visa. Although he had made the application prior to 12 December 2014, being the date of the commencement of the regulations, he was a prescribed applicant as an authorised maritime arrival and fell within the definition of "prescribed applicant" in the Regulations. As at the date of the commencement of the regulation on 12 December 2014, the Minister had not made a decision on his application and when the regulation took effect on 16 December 2014 the applicant's visa application was taken to be an application for a temporary protection (Class XD) visa. 19 The applicant has not shown anything which might suggest that the determination by the delegate was other than in accordance with the operation of the statutory provisions. No discernible error appears from its reasoning and the learned FCC judge was correct to reject this ground of review. No error arises for consideration by this Court in relation to this issue. 20 The proposed ground of appeal concerning s 45AA and reg 2.08F also appear to include a complaint that the Tribunal did not apply the correct complementary protection test pursuant to s 36(2)(aa). It is not clear why that assertion is made. No particulars are advanced by the applicant as to why that might be the case. The reasons of the Tribunal, particularly at [55] of its reasons, clearly show that it had in mind the correct test to be applied in respect of the complementary protection provisions. Its findings precluded the applicant from satisfying that section. 21 It follows that there is no sufficient doubt shown as to the correctness of the judgment below in this respect to warrant its review on appeal.

Ground 2 22 Next the applicant alleges that the primary judge failed to hold that the Tribunal had not complied with all of the requirements of ss 424 or 424A of the Migration Act in relation to providing relevant information to him prior to its review. This was not a ground of review agitated before the FCC. That gives rise to particular difficulties. The purpose of an appeal to this Court is to correct error on behalf of a Court below. It is not a forum in which a party may simply retry the case below in the hope that an appellate court judge reaches a different conclusion. This was pithily summed up 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. 23 The attempt to introduce into the proceedings a new ground of review which was not agitated before the FCC means that the applicant is not seeking to correct an error in that Court. It follows that such a ground is not maintainable. 24 In any event, there is no substance in the ground asserted. The applicant has not sought to identify any information which was not provided to it, nor which it has identified that the Tribunal considered would be the reason, or part of a reason, for affirming the decision under review. No evidence has been adduced as to what material the applicant received and, more importantly, what he claims he was not provided with. The applicant was accorded every opportunity to provide evidence to the Tribunal and he did so. There is nothing to suggest that he was not accorded a fair hearing. It follows there is no basis for thinking that the correctness of the judgment of the FCC was wrong in this respect to warrant review.

Ground 3 25 The applicant also claims that the Tribunal failed to take into account his dissatisfaction with the statement produced by this migration agent. Again, this matter was not agitated before the primary judge. However, the Tribunal did take into account his allegations that the statement had been inaccurately prepared on his behalf. It also noted, however, that at one stage he disavowed everything in it, but at a later stage he reaffirmed the evidence only to subsequently retract it later. In those circumstances the Tribunal was entitled to consider the veracity of the applicant's evidence in relation to the statement which had been prepared on his behalf. It was entitled to conclude that this was also part of his changing claims. The relief the applicant seeks in relation to this ground is for the rescheduling of a further interview. That, of course, is not available on this application or on any appeal. 26 Similarly, there are no grounds made out which establish any sufficient doubt as to the correctness of the judgement below which might warrant its review in relation to the applicant's claims about this erstwhile migration agent.

Ground 4 27 By the next ground of appeal the applicant asserts that the learned judge below failed to hold that the AAT erred by not accepting the medical and health reasons which influenced his mental situation during the process of his application before the Department, Tribunal and Federal Circuit Court. He claims he was denied procedural fairness and natural justice when he was denied a further interview. 28 Again, no such ground was put to the Federal Circuit Court judge and no error arises from the refusal to consider this ground. In addition, the Tribunal considered the medical evidence which it reviewed in detail. In particular, it accepted that the applicant's condition did not affect his cognition or ability or provide evidence. Indeed, that remains the present state of the evidence. The question whether the applicant's evidence was accurate or otherwise was a matter for the Tribunal. It considered the available medical evidence and reached its conclusions about the applicant's ability to give his evidence. The applicant also seems to claim that he was denied a second interview before the Tribunal. However, there is nothing to suggest that he sought any such interview. 29 Again, there is not sufficient doubt about the correctness of the decision of the Tribunal, or of the Federal Circuit Court judge, to warrant review of the decision by an appellate Court.

Ground 5 30 The final ground of appeal is that the primary judge failed to hold that the Tribunal did not apply the correct test in relation to the complementary protection grounds. It is said that the applicant's fear of persecution is genuine based on the political situation in Bangladesh. There is nothing in the reasons of the Tribunal which suggests that it applied the wrong test. The Tribunal, having rejected the truthfulness of the applicant's claims determined that he was not a homosexual nor would he be perceived as anti-Muslim. He was not politically active or a member or supporter of the Shabir. His other claimed incidents of harm were rejected. The Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm for any of the reasons he had claimed were he to be returned to Bangladesh now or in the reasonably foreseeable future. 31 It is apparent by this ground of review that the applicant seeks to recontest the merits of his application. That is impermissible. 32 Again, the judgment of the Federal Circuit Court rejecting this proposed ground of review is not attended with sufficient doubt to warrant the consideration of an appellate Court.

Conclusion 33 It follows that the application for leave to appeal should be dismissed. No sufficient doubt has been shown to exist in the judgment of the FCC which properly considered the application for review from the Tribunal's decision. 34 It can be accepted that the inability of the applicant to obtain a protection visa would be substantial prejudice if the judgment below is assumed to be wrong. However, it is necessary that the application for leave to appeal must satisfy both limbs of the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In this case the applicant has not been able to satisfy the first limb in any respect. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.