BKE17 v Minister for Immigration and Border Protection

1. The appellant be granted leave to rely on ground 5 of the notice of appeal.
2. The appeal be dismissed
3. The appellant pay the first respondent's costs of the appeal, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit Court dismissing his application for judicial review in respect of a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of a delegate of the first respondent not to grant the appellant a protection visa. The Tribunal found that the appellant was not a credible witness and had fabricated his claims and concocted evidence to achieve an immigration outcome. The Tribunal rejected the entirety of the appellant's claims and accordingly was not satisfied that the appellant was a person in respect of whom Australia owes protection obligations under the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) ("the Act") or the complimentary protection criterion in s 36(2) of the Act. 2 In his application for judicial review the appellant relied on the following grounds: The applicant claims that Administrative Appeal Tribunal mistook and misconstrued the facts. In making decision, the AAT failed to take account relevant considerations and took into account irrelevant considerations. The AAT made decision on irrelevant facts and findings. The applicant claims that he was denied natural justice and procedural fairness when the applicant was not given the opportunity to expand his claim that his brother is very powerful and influential local leader of Awami League. His fear of persecution is based on the political association with the BNP. The applicant claims that the Department's finding of reasons are confused and test for persecution is not applied according to the rules of the Act and according to Complimentary Protection Provisions under s 36(2)(aa) of the Act. 3 Each of these grounds was rejected by the primary judge. 4 The Notice of Appeal raises six grounds as follows: 1. Hon. Judge Street of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act. Immigration Assessment Authority. It failed to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection. The Tribunal's decision is unreasonable with regards to Complementary Provision. 2. The Hon. Judge failed to hold that the AAT exceeded its jurisdiction or constructively to failed to exercise its jurisdiction .. 3. The Hon. STREET failed to hold that the AAT made inconsistent assertions on the credibility testimony . . 4. The appellant was denied natural justice and procedural fairness when the AAT did not fulfil its obligation to put the matter to the appellant in such a way as to give him sufficient opportunity to give evidence or take submission about the issue. The issue was to present evidence of from appellant's brother who is active leader of the Awami League in Bangladesh. The AAT discredited the evidence of applicant's mother which clearly agreed with the appellant that his brother may harm significantly when the appellant will return to Bangladesh 5. Appellant claims that AAT was biased when it formed the view that all of the documents coming from Bangladesh are bogus. This is a discrimination against a particular nation or race according to International law. The appellant claims that AAT exceeded its jurisdiction. 6. A judicial procedural requirement for fair trial or hearing was discarded which is essence of the common law. Hon Judge Street failed to hold the judicial foundation of the Common law and compromise with the Respondent. [Errors in original; numbering amended] 5 Only grounds 1 and 4 were raised below and the leave of the Court is required for the other grounds to be advanced. Leave is not granted for grounds 2, 3 and 6, as ground 2 is too generalised to disclose the specific basis of the claim of jurisdictional error; and grounds 3 and 6 fail to articulate comprehensible claims of jurisdictional error. Ground 5 does however, raise an identifiable ground of jurisdictional error and as the appellant was self-represented in the Court below and the Minister is not prejudiced by the appellant raising this ground for the first time on appeal, leave to raise that ground is granted. 6 As to ground 1, there was no failure to apply the test for complimentary protection under s 36(2)(aa) of the Act nor failure to consider that claim. The Tribunal's reasons disclose that the complimentary protection criterion was separately and correctly considered and dealt with by the Tribunal. That claim was always linked with the appellant's factual claims that were rejected by the Tribunal as not credible. Since the claims relied on by the appellant were the same for s 36(2)(a) and s 36(2)(aa) of the Act, it was open to the Tribunal to rely on the findings made for the purposes of s 36(2)(a) in dealing with s 36(2)(aa): SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]; MZABA v Minister for Immigration and Border Protection [2015] FCA 711 at [92]. There was no error in the Tribunal relying upon the same findings to hold that the appellant was not a person to whom Australia owes protection obligations under s 36(2)(aa) and no jurisdictional error is disclosed in the reasoning. 7 Ground 4 concerns the claim made by the appellant that he fears for his life if returned to Bangladesh because of his brother, who he claimed is a strong follower and activist of the ruling Awami League. Paragraph [29] of the Tribunal's reasons record that the Tribunal raised with the appellant concerns of the Tribunal as to the credibility of the claim made with respect to the brother and paragraphs [49] to [59] of the Tribunal's reasons address the inconsistencies in the appellant's evidence relevant to the claim and the Tribunal's findings. In short, the Tribunal did not accept the appellant's evidence because of the inconsistencies and found that the appellant was not a credible witness. In making its finding that the appellant's evidence was not credible the Tribunal placed no weight on a letter from the appellant's mother in corroboration of his claim. At para [87] the Tribunal reasoned: In making this finding the applicant has considered the letter from the applicant's mother as to the difficulties faced by the applicant and as corroborating his claims. However, as the mother of the applicant, the Tribunal does not consider the evidence as independent and impartial and is of the view it is no assistance in evidencing the truth of the applicant's claims. Given the fundamental lack of credibility of the applicant's evidence, the Tribunal does not give any weight to this letter and its contents. 8 This ground was considered by the primary judge at [42]-[44] of the decision below as follows: In relation to ground 2, a letter sent to the applicant inviting the applicant to attend a hearing identified that the Tribunal was unable to make a favourable decision on the information before it. It is apparent that the applicant had a real and meaningful hearing and an opportunity after the hearing to provide further information. No information was identified enlivening any obligation under s 424A of the Act. On the face of the material before the Court, there is no basis to find that the applicant did not have an opportunity to articulate his claim in relation to his brother, and the adverse finding in relation to the Tribunal in that regard was open on the material before the Tribunal for the reasons given by the Tribunal. The applicant clearly had an opportunity to give evidence and put submissions in relation to the brother, and was alive to the credibility concerns raised by the Tribunal in respect of his claims. The applicant's disagreement with the adverse credibility findings does not identify any jurisdictional error. Further, the Tribunal took into account the applicant's claim of being anxious in determining the applicant's credibility and found that was not a satisfactory explanation for the credibility issues identified by the Tribunal. No jurisdictional error as alleged in ground 2 is made out. 9 The primary judge correctly held that no jurisdictional error as alleged was made out. The Tribunal put the appellant on notice of its concerns about the appellant's factual claims and credibility and the Tribunal's reasons contain a cogent and well-reasoned basis for finding that the appellant was not a credible witness in light of all the inconsistencies in the appellant's evidence. It was open to the Tribunal to make an adverse credibility determination having regard to the inconsistencies in the appellant's evidence: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146. It was also open to the Tribunal to give no or little weight to the mother's evidence, having regard to her relationship with the appellant and the lack of credibility of the appellant's evidence. 10 Ground 5 concerns the lack of weight that the Tribunal attributed to certain documentation submitted by the appellant to the Tribunal which included a certificate signed by Rahat Choudhury Munna and Sayeed Ahmed, general secretary and president of the Jatiyabadi Chattra Dal ("JCD") Sylhet. The certificate claimed that the appellant was an active worker of the JCD Sylhet District Branch and a fellow political worker and organiser of the flagbearer of Ziaur Rahman. It also certified that as a member of JCD of which he was implicated with political activities along with various social cultural activities in cooperation of the Children Out Of Advantage. It appears that the Tribunal cast doubt on the reliability of that document and other documents the appellant relied on, as a submission was put to the Tribunal that it was unreasonable to accept without question that all documentation provided from Bangladesh was fraudulent based upon a report from the Department of Foreign Affairs and Trade. The Tribunal addressed this submission at para [88] of the Tribunal's reasons, stating that the prime reason for placing no weight on the documents was the appellant's complete lack of credibility and not because "any document coming [from] Bangladesh is always bogus", as asserted in the appeal ground. It was a matter for the Tribunal as to the weight that the Tribunal gave to the documents from Bangladesh, including the certificate, as part of its fact-finding function, and no jurisdictional error is disclosed by the Tribunal in not attributing weight to the certificate because of the appellant's lack of credibility generally. 11 As none of the grounds have succeeded the appeal must be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.