BKB16 v Minister for Immigration and Border Protection

Federal Court of Australia|2017-08-04|Before: Lee J

The appeal be dismissed.
The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A background 1 This is an appeal from the dismissal of an application for judicial review by the Federal Circuit Court on 7 April 2017. Before the primary judge, the appellant, a citizen of Bangladesh who arrived in Australia in March 2015 as a crew member on a cruise ship, sought review of a decision made by the second respondent, the Administrative Appeals Tribunal (Tribunal), in May 2016. The Tribunal's decision affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant a Protection (Class XA) Visa to the appellant in accordance with the Migration Act 1958 (Cth) (Act). 2 There is no need to provide a lengthy or detailed summary of the circumstances which led to this matter being determined by the primary judge. Those circumstances are extensively canvassed at [4]-[20] of his Honour's detailed reasons. 3 It suffices to note, in broad terms, that the appellant claimed to fear harm in Bangladesh, in particular from members of the Bangladesh Awami League (BAL), due to his involvement and affiliation with the Bangladesh National Party (BNP). The appellant claimed that he was involved with the BNP through its student wing (JCD), and that he had suffered injuries from an assault perpetrated by members of the student wing of the BAL in 2008. Shortly thereafter, the appellant left Bangladesh to work in the United Arab Emirates. 4 The appellant returned to Bangladesh in 2011 and 2013, returning again to the United Arab Emirates in September 2013. As noted above, he arrived in Australia in March 2015. A delegate of the Minister refused the appellant's application for a protection visa on the basis that the delegate was not satisfied that the appellant was credible in his claims to fear harm in Bangladesh, and concluded that he had travelled to Australia for economic reasons. 5 Following the filing of an appeal to the Tribunal in November 2015, written submissions and further material was provided to the Tribunal by the appellant's then migration agent. The appellant also directly provided further material at the hearing before the Tribunal, on 1 February 2016.

Tribunal hearing 6 The Tribunal found that there were a number of contradictions and inconsistencies in the case advanced by the appellant before it. As the primary judge noted (at [12]), the Tribunal found that there were problems with the appellant's evidence, including his evidence about: (a) when he had gained admission into Ramgonj College; (b) the office he claimed to have held in the JCD; (c) the claim that he had been attacked in September 2008, and that members of the student wing of the BAL were responsible for the attack; and (d) the fact that he had returned to Bangladesh in 2011, despite claiming that his persecutors had come to his family home looking for him and asking for his whereabouts. 7 More particularly, the Tribunal found that: (a) the appellant had stated in the statement accompanying his visa application that he had gained admission into Ramgonj College but there was no mention of this in the visa application itself. The appellant was not able to state with clarity, in his evidence to the Tribunal, when he commenced at Ramgonj College; (b) the appellant failed to mention in the statement accompanying his visa application that he was the Vice-President of the JCD in Ramgonj, or the procession on 4 October 2008 that he claimed was the reason he had left Bangladesh. These claims were made in the appellant's submissions to the Department of Immigration and Border Protection dated 20 October 2015. The appellant also changed his evidence as to the number of times he was physically injured by his opponents, from once, to twice; (c) at the hearing, addressing the incident in which he was attacked in September 2008, the appellant mentioned a conflict with a Mr Abu Taher, and that people associated with Mr Taher were responsible for attacks on his brother, but the Tribunal noted that this was the first time the appellant had mentioned Mr Taher; (d) it was implausible that the appellant thought it would be safe to return to Bangladesh in 2011, despite having been absent for three years, in the light of his evidence that while he was away people from the BAL had come to his family's home in Bangladesh looking for him, and asking as to his whereabouts; (e) there were inconsistencies in the appellant's documentary evidence, including in relation to the title of the position he held in the JCD and his mother's medical certificates. 8 Additionally, the Tribunal found that the reason for the appellant's departure from Bangladesh was to seek employment rather than as a result of his political involvement. Further, the Tribunal did not accept that while he was away, the appellant's persecutors came to his family home looking for him. Despite accepting that since his arrival in Australia the appellant had become involved in the BNP Australia branch, and that it was likely that if he returned to Bangladesh he would continue his "low-level involvement" in the BNP, that did not give rise to a high-profile involvement which may occasion a significant risk of harm. 9 In conclusion, the Tribunal found the appellant did not have a well-founded fear of persecution or that there was a real risk the appellant would suffer significant harm as a consequence of his return to Bangladesh.

Federal Circuit Court Proceedings 10 In June 2016, the appellant commenced proceedings in the Federal Circuit Court. It is clear that the nature of the amended application and the written submissions, including the numerous grounds of review, created challenges for the primary judge by reason of their lack of particularisation. Doing the best that his Honour could, the primary judge grouped the grounds under four broad categories, as follows: (a) First, (being the principal focus before the primary judge), a contention of actual or apprehended bias by the Tribunal (bias contention). (b) Secondly, a broad claim of denial of procedural fairness, described (at [35]) as "broad ranging but not well developed", which rested on an argument that the Tribunal had contravened ss 423A, 424A and 430 of the Act (statutory procedural fairness contentions). (c) Thirdly, an assertion of "error of law" in which the appellant argued that the Tribunal had erred in its failure to apply the subjective and objective test in the definition of "refugee" (error of law contention). (d) Fourthly, an omnibus of separate grounds relating to: the failure to consider additional documents; a relocation issue; failure to give the appellant the benefit of the doubt; that there was no evidence upon which the Tribunal could base its credibility findings; and, that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations (remaining issues contention). 11 As to the bias contention, having reviewed the transcript of the Tribunal hearing, the primary judge found no basis for either actual or apprehended bias (at [29]-[33]). It is fair to say that the allegations of bias were expressed at a high level of generality, for example, that the Tribunal was "unfriendly" and "preoccupied" and that the tone of the Tribunal was "not professional". The appellant also raised some issues which can be conveniently dealt with below when it comes to the matters advanced before me on the appeal. 12 In relation to the statutory procedural fairness contention, the primary judge found that neither a breach of s 423A nor of s 430(1) of the Act constituted jurisdictional error (at [37]-[38]). His Honour also rejected the appellant's claim that he had been denied a fair hearing in contravention of s 425 of the Act (at [50]-[53]). I will return to the alleged breach of s 424A at [29]-]30] below, in the course of considering the appellant's arguments at the hearing of this appeal. 13 As to the error of law ground, the primary judge found (at [54]-[57]) that the Tribunal had not fallen into error by reason of the fact that it found that it was not satisfied that the appellant had a well-founded fear of persecution and, hence, that it was unnecessary for the Tribunal to then consider the question of whether the appellant had subjective fear. 14 As to the remaining issues contention, first, the primary judge (at [60]) addressed the fact that the Tribunal referred to the documents that were said to have not been considered in its written reasons, addressed shortcomings in some of them but was ultimately persuaded to reject the appellant's claims on the basis of the difficulties in his own evidence; secondly, the primary judge (at [61]) noted that the Tribunal did not express any doubts in its conclusions about the relevant facts, such as to suggest that the question of giving the benefit of the doubt to the appellant was somehow determinative; thirdly, the primary judge noted the following: [62] The third issue raised is that there was no evidence upon which the Tribunal could base its credibility findings. The Tribunal is not obliged to have evidence which contradicts the [appellant's] claims before it can reject those claims. It is required to act according to reason. The Tribunal did so in this case. As I have observed, the Tribunal found a number of inconsistencies and implausibility in the [appellant's] evidence and arrived at its decision on the basis of those matters. The Tribunal's conclusion on credibility was not something it simply plucked out of the air or arrived at without any rational basis. [63] Finally, the [appellant] contends that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations. There are no particulars of this contention and, having considered the Tribunal's reasons and the material before it, I cannot ascertain any basis for the contention.

B Grounds of appeal 15 At the commencement of the hearing, I clarified that the notice of appeal, which had only two grounds of appeal, ought to be supplemented by four further overlapping grounds which are contained in the notice of appeal under the heading "Ground of Application". During the course of the hearing it became evident, however, that only two grounds were pressed which, in modified form, reflected the bias contention and the statutory procedural fairness contention which were before the primary judge. Notwithstanding this, I will deal with each of the six matters identified. 16 I pause to note that an aspect of the statutory procedural fairness contentions was advanced before me in a way which was not advanced before the primary judge: the appellant before me contends that the Tribunal also breached the requirements of s 422B of the Act. Accordingly, this contention was not dealt with explicitly by the primary judge.

Bias contention 17 Two matters in particular were relied upon by the appellant in order to suggest that the Tribunal was biased and that the primary judge fell into error in failing to identify this bias. For reasons that will become evident, it is unnecessary for me to form a conclusion about whether or not what was being alleged was a reasonable apprehension of bias or actual bias. 18 The first matter is that the appellant argues that bias was evident by the uniform rejection of his contentions by the Tribunal. This included a lack of any interest in seeking to verify the reliability of any material documentation provided to the Tribunal and by reason of a pre-judgment that had arisen through an ingrained scepticism which, as I followed the argument, has been the result of a number of other applicants for refugee status advancing their claims on the basis of fabricated material. 19 What was said to be an illustration of this bias was the way in which the Tribunal had dealt with a medical certificate which identified the appellant's mother's medical condition. The appellant's asserted reason for returning to Bangladesh in 2013 was that his mother had been diagnosed with high blood pressure, severe diabetes and had developed pneumonia and typhoid. The medical certificate produced by the appellant (which I have reviewed) appears to be a list of medication prescribed for his mother in August 2013, and referred to asthma, anaemia and another condition which is not immediately apparent from the document. 20 The medical certificate also records the appellant's mother's age in hand-writing in a way which initially appeared to the Tribunal as recording "98 years" rather than "48 years". Having reviewed the document, it is fair to say that it is not pellucid in this regard. Initially, the Tribunal did put to the appellant that the medical certificate indicated that his mother was 98 years old and that this indicated that the medical certificate was not genuine. 21 As I indicated to the appellant during the course of his oral submissions, when the Tribunal's statement of decision and reasons are considered, the Tribunal ultimately accepted that the age given for the appellant's mother in the medical certificate can be read as 48 years. This did not, however, affect the Tribunal's conclusion that the medical certificate did not substantiate that the appellant's mother was suffering from pneumonia or typhoid when the appellant returned to Bangladesh in August 2013. The simple point being made by the Tribunal was that the medical certificate did not substantiate the appellant's contention and, in the absence of other material which did substantiate this contention, it cast doubt upon the justification advanced by the appellant for his decision to return to Bangladesh in August 2013, despite his claimed fear of being persecuted in that country. For my part, I do not believe that this process of reasoning demonstrates illogicality (less still, in some unarticulated way, actual or apprehended bias). 22 The second matter related to attempts by the Tribunal to call the appellant's brother on a telephone number given to the Tribunal by the appellant. The first attempt at contacting the appellant's brother miscarried. The Tribunal member, for obvious reasons, did not wish to identify himself until his interlocutor had made his identity clear, and a roommate of the appellant's brother apparently dissembled as to whether or not the appellant's brother was present. 23 It is fair to say that, after the exchange with the appellant's brother's roommate, the Tribunal did not agree immediately to make a further attempt to contact the appellant's brother. That position changed, and contact with the appellant's brother was finally made. As the primary judge explained (at [25]): The Tribunal then called the telephone number given to it by the [appellant]. The first telephone call was unsuccessful but the witness was contacted on the second attempt. The Tribunal also took evidence from another of the [appellant's] witnesses. After that, the Tribunal outlined to the [appellant] some of its concerns in respect of his application and gave him the opportunity to address those concerns. The Tribunal then asked the [appellant's] agent whether there was anything that had not been covered. The agent expressed concern that the [appellant's] brother had not been able to be contacted. It appears that the [appellant] was given an opportunity to leave the hearing room in order to obtain the correct number for his brother and, upon his return, the Tribunal called the [appellant's] brother and took evidence from him. (footnotes omitted) 24 As the primary judge correctly noted at [27], in order to establish a reasonable apprehension of bias, the appellant must show that a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question in issue: see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 434 [27]. Such an allegation must be "distinctly made and clearly proved": Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531 [69] per Gleeson CJ and Gummow J. 25 The primary judge also dealt with the allegation that actual bias had been demonstrated by reference to the matters upon which the appellant relied (at [28]-[29]). His Honour correctly identified that the state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legang at 531-532 [72] per Gleeson CJ and Gummow J. 26 Contrary to the appellant's submission, I do not believe that there is any error in the conclusion of the primary judge as to the bias contention. Nothing in the material, either identified before the primary judge or before me, indicated that the Tribunal's decision was affected by either apprehended or actual bias.

Statutory procedural fairness contention 27 As noted at [17] above, the argument advanced before me was somewhat refined from that advanced before the primary judge. The notice of appeal contended that the Tribunal "denied the [appellant's] natural justice and procedural fairness, pursuant to s424A and 422B(1)(a) and (b)…". 28 The primary judge dealt with the first of these contentions at [39]-[47]. The particulars of any information, which the appellant contended were not provided, related to the following: (a) country information contained in reports from the Department of Foreign Affairs and Trade; (b) inconsistencies in the appellant's claims; (c) an extract from the delegate's decision; and (d) the error in the appellant's mother's age, the chronology of his education and relocation options. 29 The difficulty with this argument, as the primary judge correctly identified (at [41]), is that the Tribunal was not required by s 424A of the Act to provide the appellant with particulars of any of these matters. As the primary judge noted, with respect, correctly: [42] The country information referred to was not specifically about the [appellant] or another person. It was information about a class of persons of which the [appellant] or another person was a member. For that reason it fell within sub-s.424A(3)(a) and was excluded from s.424A(1). [43] Inconsistencies in evidence given by the [appellant] are not "information" for the purposes of s.424A(1): SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26; [18]. [44] There was no extract from the delegate's decision which appears to have been considered by the Tribunal at any stage, to be the reason, or part of the reason, for its decision. While the Tribunal summarised what had occurred at the interview with the delegate, nothing in that undermined the [appellant's] claims in the way required for information to fall within s.424A of the Act. Further, even if it were, I am satisfied that the [appellant] sent the Tribunal a copy of the delegate's decision for the purposes of the review and so sub-s.424A(3)(b) operated to exclude any obligation under s.424A(1): Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241. [45] All of the information concerning the [appellant's] mother's age and chronology of the applicant's education was provided by the [appellant] to the Tribunal and/or as part of the process that led to the decision under review: see sub-ss.424A(3)(b) and (ba). For that reason, those matters did not give rise to any obligation under s.424A(1) of the Act. [46] Finally, even if the issue of relocation had arisen (which it did not), it was not "information" within the meaning of s.424A(1) of the Act. "Information" refers to knowledge of a fact conveyed by some document, material or other evidence, rather than to issues that might arise upon a particular claim to be owed protection obligations and so to satisfy the criteria for a protection visa. (footnotes omitted) 30 As to the contention concerning ss 422B(1)(a) and (b), this argument is somewhat difficult to follow. Section 422B is the exhaustive statement of the natural justice hearing rule for the purposes of the conduct of a review of Part 7 reviewable decisions. As best I can understand it, the appellant appears to contend that the Tribunal did not act in a way that was fair and just. However, that does not seem to me to add anything to what has previously been advanced by reference to the appellant's other contentions.

Additional grounds of appeal 31 The foregoing is sufficient to dispose of this appeal. However, for the sake of completeness, I will now deal with the additional grounds identified at [16] above, in the order listed in the notice of appeal. 32 The first ground asserts that the primary judge "ignored some legal issues which were not clearly explained in the judgment" and that his Honour "has denied the [appellant] natural justice". The difficulty is that the 'unexplained' legal issues are not articulated and the related contention, that the primary judge denied the appellant natural justice, is not particularised. There is nothing that I have seen in the record which indicates that the appellant was not provided with every opportunity to make oral submissions, some of which were referred to in the course of the primary judge's careful reasons (see, for example, [23]). 33 The second ground contends that the Tribunal "did not follow procedural fairness". As is by now evident, the primary judge did deal with this ground in some detail, including at [35]-[53] in relation to alleged non-compliance by the Tribunal with provisions of the Act, the alleged failure of the Tribunal to provide a fair hearing and the allegations of actual and apprehended bias, to which I have already made reference at [18]-[27] above. 34 The third ground, being an assertion that the Tribunal "made [sic] error of law and failed to exercise the proper procedure", appears to add nothing to the broad contention that the appellant has been denied procedural fairness. As has already been identified, the primary judge addressed and determined correctly the appellant's claims in this regard, and there is no error in his Honour's the reasoning. 35 After passing over the fourth and fifth grounds, which comprise the bias and statutory procedural fairness contentions which I have already dealt with above, the sixth ground again appears to repeat an allegation of actual bias. For the reasons I have already given, this ground was addressed and dealt with correctly by the primary judge.

C conclusion & orders 36 It follows that there is no merit in any of the grounds of appeal identified with the consequence that the appeal must 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 Lee.

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