BAX15 v Minister for Immigration and Border Protection

Federal Court of Australia|2016-05-11|Before: Perry J

The appeal is dismissed.
The appellant is to pay the first respondent's costs of the appeal fixed in the sum of $5,700. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J: 1 INTRODUCTION [1] 2 BACKGROUND [7] 2.1 The visa application and the decision of the delegate [7] 2.2 The Tribunal's decision [9] 2.3 The decision of the Federal Circuit Court [21] 3 CONSIDERATION [23] 3.1 The issues [23] 3.2 Ground one: the failure to give weight to the letter [25] 3.3 Ground two: alleged error in having regard to the delay in lodging the protection visa application [37] 3.4 Ground three: alleged jurisdictional error in finding that the appellant gave confused, contradictory and inconsistent evidence [44] 4 COSTS [47] 5 CONCLUSION [49]

INTRODUCTION 1 This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a Protection (Class XA) Visa (the visa) under s 36 of the Migration Act 1958 (Cth) (the Act). 2 The appellant, who is unrepresented, contends that the Court below erred in failing to find that the Tribunal's decision was affected by jurisdictional error in that the Tribunal: (1) gave no weight to a supposed letter from the Bangladesh Nationalist Party (BNP) (ground one); (2) had regard to an irrelevant consideration or otherwise fell into jurisdictional error in finding that the appellant does not have a subjective fear of persecution because he delayed in lodging his protection visa application (ground two); and/or (3) made a wrong finding of fact which was jurisdictional in finding that the appellant gave confused, contradictory and inconsistent evidence relating to his claimed positions in the Chattra Dal and BNP (ground three). 3 These errors, insofar as they relate to the Tribunal's decision, are essentially the same as those raised and rejected by the primary judge. 4 The Minister filed an outline of submissions on 2 May 2016 in advance of the hearing which set out in detail and with care the background to the appeal and the reasons why the Minister submitted that the appeal should be dismissed. At the start of the hearing, the appellant confirmed that he had received a copy of the Minister's submissions and that they had been translated to him. 5 The appellant relied upon written submissions which he handed up at the hearing and otherwise did not seek to make oral submissions save to reiterate that he was afraid that his life would be in danger if he was returned. 6 For the reasons that follow, no error has been demonstrated in the decision of the Federal Circuit Court and the appeal must be dismissed.

2.1 The visa application and the decision of the delegate 7 The appellant is a citizen of Bangladesh and arrived in Australia on 18 March 2013 on a sponsored family visitor visa. 8 On 16 May 2013, the appellant applied for the protection visa. On 22 January 2014, the delegate refused to grant the appellant the visa, rejecting his claims on credibility grounds.

2.2 The Tribunal's decision 9 On 12 February 2014, the appellant applied for review of the delegate's decision. Oral argument was heard and evidence was presented at an initial hearing on 9 December 2014. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages, and the appellant was represented by his registered migration agent. 10 Following a request on medical grounds, the resumed hearing which was originally set down for 24 March 2015 was adjourned and was set down instead for 8 May 2015. Despite the appellant again seeking an adjournment also on medical grounds, the Tribunal determined that it was appropriate to make its decision under s 426A of the Act on the evidence before it, "having given the applicant ample opportunity to present his case" (Tribunal reasons at [70] and [71]). In this regard, the Tribunal also relied upon the history of the matter and serious concerns raised by anomalies in the medical certificate, on the basis of which the Tribunal found that the appellant was "seeking to delay his hearing in order to prolong his stay in Australia". No challenge is made to the decision by the Tribunal to refuse the adjournment and in my view there is no error apparent in the Tribunal's reasoning in this respect in any event. 11 On 18 May 2015, the Tribunal affirmed the delegate's decision not to grant the appellant a visa. 12 The appellant's claims were made in his protection visa application, the interview with the delegate and at the Tribunal hearing on 9 December 2014. He claimed to fear persecution by reason of his involvement in the BNP and associated organisations from the Bangladeshi authorities and supporters of the Bangladesh Awami League (AL). In particular he claimed as follows: (1) most of his family were involved in the BNP, including his father who was a district leader of the BNP; (2) in 1986 while in high school, boys at his high school protested against the Ershad military regime and he was kicked out of school and never returned; (3) the appellant worked on several election campaigns for BNP candidates between 1991 and 2008; (4) he joined the BNP's youth wing in 1997 and became vice president in 2002; (5) he worked for a BNP candidate in the lead up to the Parliamentary election on 29 December 2008, in which the AL won nationally in a landslide victory, governing with the Jatiya Party; (6) the AL became revengeful of its opponents, particularly leaders and activists of the BNP, and there was systematic persecution of the BNP and its leaders; (7) in 2011, the appellant became an executive member of the BNP youth wing whereupon he became a target of AL supporters; (8) in mid-2011, the appellant conducted a meeting with BNP workers and lead a procession for which he was chased by AL supporters; (9) in March 2012, he attended a procession with BNP leaders which was disrupted by AL supporters and he was beaten by the police; (10) the police took no action with respect to complaints made by the appellant's cousin to the police about the two incidents at subparagraphs (8) and (9) above; (11) in late June 2012, a group of police raided his house when he was not at home and he was later informed that a case had been filed against him and he was tortured by the police; (12) he had had difficulties leaving from Dhaka airport as he had a case pending against him and he had to bribe the Bangladeshi authorities before he was permitted to travel to Australia; (13) all of the opponent leaders and activists are in jail, several hundred political activists have been killed and human rights has reached its lowest situation; (14) if he returned home, he would be persecuted and his life was not safe. 13 The Tribunal assessed the appellant's claims for protection and rejected them on the ground that he was not a credible witness. 14 First, the Tribunal rejected the appellant's claimed affiliation with the BNP (Tribunal reasons at [176]). It found that he was unable to articulate his motivation for devoting himself to the BNP or "to articulate the man[i]festo, principles, policies and platforms of the party in various campaigns except in the most simple terms" (Tribunal reasons at [174]). The Tribunal also found that: 175. The applicant gave confused, contradictory and inconsistent evidence relating to his claimed positions in the Chattra Dal and BNP, his role and profile, the positions held, when he held them and his duties. He gave confusing and inconsistent evidence in relation to parliamentary elections held during his claimed tenure as a Chattra Dal and/or BNP office holder. His evidence was confused and contradictory in relation to when he officially joined the BNP or its affiliated organisations, his evidence was erroneous as to who won elections at the local and national level during his claimed period of involvement and it was at odds with what he indicated in his statement. His evidence was at variance between his application, his statement and his evidence at his Tribunal hearing. His evidence as to his role profile and activities was vague and unpersuasive. 15 Secondly, in support of his protection visa application, the appellant had provided a letter from the Secretary of the BNP Youth Party for the (relevant) District Unit (the letter); an FIR for an offence allegedly committed in June 2012 for illegal gathering, the Arms Act, and for having obstructed government work and causing damage to government goods; a complaint; a charge sheet and a document relating to a trial date to be set (Tribunal reasons at [32]). The letter was purportedly dated 1 October 2013 and identified the appellant as an executive leader of the Bangladesh National Youth Party (relevant) District Unit before coming to Australia and that a false case had been filed against him for which he would be persecuted if returned. For reasons which I later explain, the Tribunal did not give the letter or the claims of outstanding charges any weight and did not consider them to be genuine or reliable (Tribunal reasons at [177] and [183]). 16 Thirdly, having found that the appellant was not affiliated with the BNP, the Tribunal did not accept the appellant's claims to have been targeted by AL "goons", that he was beaten by police mercilessly, that the police raided his home, or that charges are outstanding against him. Nor did the Tribunal accept that anyone, or any agency or group acting at its behest, has any interest in the appellant (Tribunal reasons at [178]; see also at [182]). The Tribunal also noted that the appellant's evidence in relation to harm claimed to have been suffered at the hands of AL and the number of claimed outstanding charges "was inconsistent, contradictory and confused" (Tribunal reasons at [178]). 17 In the fourth place, in light of the country information (which was set out in detail earlier in the Tribunal's reasons), the Tribunal did not accept that the appellant faced a real chance of persecution in Bangladesh for reasons of political opinion (Tribunal reasons at [178]-[179]). 18 Fifthly, the Tribunal found that the delay in lodging his protection visa application for two months after his arrival in Australia for a second time further seriously undermined his credibility. The Tribunal considered that if serious charges had been pending against the appellant for political reasons, it would have expected the appellant to seek protection at the earliest opportunity (Tribunal reasons at [180]). 19 Finally the Tribunal also considered, but did not accept, that there is a real chance that the appellant would be harmed by reason of the general security situation in Bangladesh (Tribunal reasons at [187]). 20 Having rejected his claims, the Tribunal concluded that there was no real chance that the appellant would face persecution in Bangladesh for any Convention reason so as to satisfy the criteria for a protection visa in s 36(2)(a); nor that he would suffer significant harm so as to attract complementary protection and satisfy the criteria in s 36(2)(aa) of the Act for the visa (Tribunal reasons at [188]).

2.3 The decision of the Federal Circuit Court 21 The appellant was represented by counsel before the Federal Circuit Court and, as earlier mentioned, relied upon the same grounds as those relied upon here: see [2] above. 22 The primary judge dismissed the application for judicial review challenging the Tribunal's decision. With respect to ground one, the primary judge found that it was open to the Tribunal to give no weight to the letter in light of its adverse credit findings (at [11]). With respect to the second ground, the primary judge found that it was clearly open to the Tribunal to make the adverse finding at [180] of its reasons and that the finding could not be said to lack an evident and intelligible justification. Finally, with respect to ground three, the primary judge held at [14]: … counsel for the applicant submitted that there was an inconsistency on the position held by the applicant and that it supported a contention that there was a wrong finding on a critical step in the conclusion of the Tribunal. As skillfully as the submission was advanced, it is difficult to see how ground 3 could be made out in the absence of the transcript. Further reference is made to paras.21, 35, and 62 of the Tribunal's reasons by counsel for the applicant. These references do not support any wrong finding. The position held as described in those paragraphs, was not identical and there are a number of inconsistencies in the applicant's evidence that are identified in para.67. Indeed, counsel for the applicant properly conceded inconsistencies in relation to dates. In my opinion, the adverse finding in para.175 was open on the material before the Tribunal. Ground 3 fails to make out any jurisdictional error.

3.1 The issues 23 I would emphasise at the outset that neither this Court nor the Federal Circuit Court has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of a protection visa or to grant the appellant a visa. As such, neither court has the capacity to consider the factual merits of the Tribunal's decision to refuse to grant a protection visa to the appellant. The jurisdiction of the Federal Circuit Court is limited to considering only whether the Tribunal's decision to refuse to grant the appellant a visa is lawful under the Act, including whether it is procedurally fair, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the Federal Circuit Court on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). 24 Before this Court, the appellant raises three grounds of appeal: 1. The Tribunal found at paragraph 177 that "it gives the purported letter from the BNP no weight". There is jurisdictional error in this finding by the Tribunal. These corroborative evidence issues were placed to the court below and the court below erred to decide this issue. 2. The Tribunal made irrelevant consideration and found at paragraph 180 that, because the applicant delayed lodging his protection visa application for two months after his arrival in Australia, the applicant does not have a subjective fear of persecution. The Tribunal fell into jurisdictional error in making this finding. The Court below erred in dealing this issue. 3. The decision by the Tribunal was based on wrong findings. As to the Tribunal found at paragraph 175 that the applicant gave confused, contradictory and inconsistent evidence relating to his claimed positions in the Chatra Dal and BNP and the positions he held. The applicant's evidence concerning this issue was not confused, contradictory or inconsistent. The Tribunal made a wrong finding of fact which, in the particular circumstances, was a jurisdictional error. The Court below made an error in dealings this issue. (errors in the original.)

3.2 Ground one: the failure to give weight to the letter 25 The first ground challenges the finding by the Tribunal that it could give no weight to the purported letter from the BNP. Specifically at [177] the Tribunal found that: As the applicant has no affiliation with the BNP, and given country information before the Tribunal indicating that fraudulent documentation from Bangladesh is readily available, it gives the purported letter from the BNP no weight. It notes that the letter contains spelling errors and its content is inaccurate and inconsistent with the applicant's own claims. In relation to there being an outstanding charge against the applicant, the Tribunal gives this claim no weight, noting its finding above that the applicant is not affiliated with the BNP. 26 As is apparent from [177], it is not the case that the Tribunal overlooked the letter, as the appellant submits. Rather it determined that it could afford the letter no weight. 27 Nor, in my view, is any error is apparent in the finding by the primary judge that it was open to the Tribunal to give no weight to the letter and thereby effectively exclude the letter from its consideration. 28 First, the Minister rightly submits that a primary decision-maker is not required to accept uncritically the claims made by an applicant. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596: …the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or the that it is 'well founded' or that it is for reasons of political opinion. It remains for the Minister in the first place to be satisfied … and where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out. 29 Further, in determining whether to accept an applicant's claims, findings on whether an applicant should be believed in his claims have been described as "the function of the primary decision maker par excellence.": Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] (McHugh J). In other words, such findings are an integral and necessary aspect of the task entrusted to the Tribunal on review in deciding what is the correct and preferable decision on the evidence at the time it makes its decision. Conversely, findings as to credit are beyond the jurisdiction of the Court to review absent, for example, the lack of a logical or intelligible justification for the findings. As I indicated earlier, it is not the function of a court on judicial review to assess for itself the merits of the Tribunal's decision, but only its legality. As such, it is not sufficient merely to establish that another decision-maker might have reached a different conclusion based upon the evidence. 30 Secondly, in the present case, in my view, it was open to the Tribunal to attach no weight to the letter. It is apparent from the Tribunal's reasoning at [177] that its finding that it could give the letter no weight took into account not only the content of the letter and various deficiencies which cast doubt upon its genuineness, but also the Tribunal's findings that the appellant was not affiliated with the BNP due to inconsistencies in his evidence and country information. I accept in this regard the Minister's submission that the Tribunal's approach accords with the "poisoned well approach" articulated by McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [49], namely: … [I]t is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. 31 The same may equally be said where the party's credibility has been so weakened by questioning, as here, in an inquisitorial hearing by an administrative tribunal. 32 There was therefore a logical and intelligible justification given for the decision not to accord the letter any weight. 33 Thirdly, I do not accept the appellant's submission that, in deciding to give the letter no weight, the Tribunal was impermissibly influenced by the country information about the ready availability of fraudulent documentation in Bangladesh, including the allegation that the Tribunal was "seriously bias[ed]" by that information. There is nothing which would preclude the Tribunal from taking into account country information being evidence from third parties such as the Department of Foreign Affairs and Trade and human rights organisations, about the state of affairs within a country relevant to a person's claims, be it for example the availability of fraudulent documents or alleged human rights abuses: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (Randhawa) at 452 (Beaumont J, with whose reasons Whitlam J agreed). To the contrary, such evidence is typically highly relevant to the task entrusted to the Tribunal in determining the accuracy and credibility of an applicant's claims about the situation within her or his country of origin and the risks which she or he may face if returned. As the Full Court explained in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]: By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court…. 34 In so holding, the Full Court emphasised at [12] that: The very function of the Tribunal was to assess the appellants' claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants' country of origin. 35 Nor is there anything in the Tribunal's reasons that indicates that it gave the country information determinative weight in deciding not to give the letter any weight or that it relied upon the country information in such a way as to abdicate (ie, fail to comply with) its responsibility to make findings for itself on the evidence: Randhawa at 452. As I have mentioned, in reaching that view, the Tribunal took into account also problems with the letter itself regarded as indicating that it was not genuine, such as spelling and other errors, and its earlier concerns about the appellant's own evidence. 36 It follows that I do not consider that ground one establishes any jurisdictional error on the part of the Tribunal.

3.3 Ground two: alleged error in having regard to the delay in lodging the protection visa application 37 It is clear that where the Tribunal has regard to an irrelevant consideration, that will constitute a jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). As McHugh, Gummow and Hayne JJ held in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 347-348 [73]-[74], those considerations which are relevant (and equally, irrelevant) in a jurisdictional sense to the Tribunal's task: …are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called upon to consider... This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts. 38 The Tribunal questioned the appellant at the hearing about his delay in applying for a protection visa and describes that exchange at [56] of its reasons: The applicant was asked given his claimed harrowing departure he thought to apply for protection upon arrival in Australia having just managed to escape persecution in Bangladesh the applicant indicated that there was not this kind of thinking. He delayed lodging his protection visa from 19 March 2013 until 16 May 2013 because he thought he would go back as the situation would improve. He was asked given the history of politics in Bangladesh he thought that the situation would improve. He responded that he thought if his party came to power his case would be withdrawn. He asked what he knew about the nature of the charges outstanding in Bangladesh before leaving the country. He responded that on 29 June 2012 the police raided his home but he was not home. 39 As earlier explained, the Tribunal then found at [180] that: The Tribunal further notes that the applicant delayed lodging his protection visa for some two months after his arrival in Australia for the second time. He delayed lodging his protection visa as he thought that the situation would improve. Given that the applicant claimed that criminal charges were outstanding against him, the Tribunal rejects this explanation as had serious charges been outstanding against the applicant for political reasons, the Tribunal would expect the applicant to have sought protection at the earliest opportunity. Given his claimed fear of persecution in Bangladesh, the Tribunal finds that the applicant does not have a subjective fear of persecution and his delay further seriously undermined his credibility. 40 It is submitted by the appellant that this factor was an irrelevant consideration and also that the "Tribunal logic was not supported by any evidential proof." 41 In my view, the appellant's delay in applying for a visa is not an irrelevant consideration. Rather, in line with the principles identified in the joint judgment in Yusuf, the significance attributed to that delay constitutes a part of the Tribunal's process of making a particular finding of fact upon which the Tribunal has acted, namely, in reaching a view as to whether it was satisfied that the appellant has a subjective fear of persecution and otherwise in assessing his credibility. 42 Nor do I consider that the Tribunal in having regard to this delay in reaching a view on these matters was acting unreasonably or irrationally. For example in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 349, Heerey J said with respect to a similar line of reasoning: …the applicant complained of the tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicants alleged fear of persecution. It is a rational consideration open on the material. 43 While the delay in making the protection visa application in this case was shorter than that in Selvadurai, namely, two months as opposed to 20 months, I accept the Minister's submission that in this case it was not unreasonable or irrational for the Tribunal to have regard to the appellant's delay in the manner explained. In so saying, I acknowledge that the situation might be different in other cases depending upon the circumstances if, for example, the delay were for a very brief period of time. Further, the Tribunal did not treat the existence of the delay as the end of its enquiry but considered the genuineness of the explanation put forward by the appellant: Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 (Wilcox, Einfeld and Tamberlin JJ). The fact that the Tribunal did not consider that explanation to be genuine is a matter that was open to the Tribunal on the evidence for the reasons that it gave, as the primary judge held. There is no merit in my view in ground two of the notice of appeal.

3.4 Ground three: alleged jurisdictional error in finding that the appellant gave confused, contradictory and inconsistent evidence 44 Finally, the appellant challenges the finding at [175] of the Tribunal's reasons (quoted at [14] above) that the appellant gave confused, contradictory and inconsistent evidence as to his positions in the Chattra Dal (the BNP youth wing) and the BNP. The Tribunal sets out in detail its questioning of the appellant at the first Tribunal hearing with respect to his claims, including as to the positions he allegedly held with these and associated organisations and his answers to those questions at [53]-[64] of its reasons. 45 In my view the Minister correctly submits that by ground three, the appellant ultimately seeks to take issue with the Tribunal's findings as to his credibility and on matters of fact. As the primary judge explained, the Tribunal rejected the appellant's claims on the ground of inconsistencies and other problems which it identified with his evidence. Those findings were reasonably open to the Tribunal, as the primary judge also held, and, for the reasons which I have earlier given at [23], it is not open to the Court to engage in a review of the merits of the Tribunal's decision. This is not a case where there was no evidence to support the finding at [175], contrary to the appellant's submissions. Indeed, while submitting that his evidence as to the positions he held was consistent, the appellant accepted that there were inconsistencies in his evidence as to when he held various positions within relevant organisations. 46 It follows that ground three of the appeal must fail.

COSTS 47 In the event that the Minister was successful, the Minister sought his costs fixed in the amount of $5,700 pursuant to s 43(3)(d) of the FCA Act. The reason for this amount was explained in an affidavit of Sharon Anne Burnett, the lawyer having carriage of the matter for the Minister. The amount represents the mid-point of a range of costs (being professional costs and disbursements) between $5,310.50 and $6,127.50 which the Minister considers he would recover upon a taxation of costs. The appellant indicated that if he was unsuccessful in the appeal he did not oppose an order for costs or the amount sought by the Minister. 48 The Minister having been wholly successful in the appeal, I consider that it is appropriate for the Minister to receive his costs fixed in the sum of $5,700.

CONCLUSION 49 For these reasons, the appeal must be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

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