BSO16 v Minister for Immigration and Border Protection

The Tribunal proceeding 3 The issue before the Tribunal was whether Australia owed the applicant protection obligations by reason of him being a refugee, for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), or whether he otherwise met the complementary protection criteria in s 36(2)(aa) of the Act. The essence of the applicant's claim to protection was that, for several years, he and his family have been targeted and threatened by a political party operating in his village (the Awami League), as well as by Bangladeshi law enforcement authorities. 4 In finding that neither paragraph (a) nor paragraph (aa) of s 36(2) was satisfied, the Tribunal disbelieved the applicant in a number of key respects. (a) First, with respect to whether Australia owes the applicant protection obligations under the Refugee Convention, the Tribunal did not accept that he or members of his family held interests adverse to those of the Awami League or Bangladeshi law enforcement authorities and was not satisfied that there was a real chance that the applicant would suffer serious harm for the reasons claimed if he returned to Bangladesh. Accordingly, the Tribunal did not consider that the applicant had a well-founded fear of persecution for the purposes of s 36(2)(a) of the Act. (b) Secondly, for the same reasons, the Tribunal was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk that he would suffer significant harm. Accordingly, the requirements of s 36(2)(aa) were held not to be met.

The FCCA proceeding 5 The applicant subsequently sought judicial review of the Tribunal's decision in the FCCA. For the purposes of a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth), the applicant contended that the Tribunal had erred, inter alia, in failing to take into account relevant considerations, failing to afford him procedural fairness and in its fact-finding and reasoning processes. 6 Relevantly, by an application and amended application, the applicant contended in substance that the Tribunal: (a) failed to take into account that the applicant would be persecuted for his political opinion and for being an atheist; (b) failed properly to assess the harm alleged in his application and the conditions in Bangladesh, including by relying on country information produced by the Department of Foreign Affairs and Trade (DFAT) rather than other information not provided to the Tribunal; (c) failed to apply the correct tests for the purposes of s 36(2)(a) and (aa); (d) failed to "verify" his evidence; (e) denied him procedural fairness; and (f) impermissibly determined his application in a manner identical or similar to that of the delegate. 7 On 4 November 2016, the primary judge held that there was no arguable procedural fairness claim and that none of the grounds relied upon otherwise disclosed an arguable jurisdictional error on the part of the Tribunal. The primary judge also noted that there had been no claim before the Tribunal that the applicant would be persecuted for his political opinion or for being an atheist and that the applicant was thus precluded from relying on that ground on review.

The application in this Court 8 The application for leave to appeal is made on several bases, which are set out in various documents filed by the applicant in this Court, namely: (a) an application for leave to appeal filed on 16 November 2016; (b) an affidavit of the applicant filed on 16 November 2016 (including the annexed draft notice of appeal); (c) the applicant's written submissions filed 16 February 2017; and (d) a document described as an "outline of written argument", which was handed to the Court at the hearing of the application on 7 March 2017. 9 The grounds of error contended for by the applicant in this application conflate the Tribunal's legal and factual findings and generally seek to cavil with the Tribunal's assessment of his credibility as a witness. 10 The draft notice of appeal contains four grounds: 1. The judge of the Federal Circuit Court in his honourable judgement delivered on 04 November 2016 failed to find error of law and relief under the judiciary Act. He failed to find that the Administrate Appeals Tribunal (AAT) has not found any evidence in relation to may claims and thus its decision influenced by sufficient doubt. 2. Honourable Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to find difference between a reasonable relocation and unreasonable relocation. The Tribunal failed to understand the geographical situation of country like overpopulated country like Bangladesh and concluded that I will not suffer from any harm if I goes to Bangladesh which is not feasible. 3. I was denied procedural fairness when the Tribunal member made opinion based on assumption and possibilities without any proper investigation. The Tribunal failed to assess the current situation in Bangladesh where thousands of innocent people killed by crossfire. And harassed by the autocratic present Awami League Government Authority. In assessing danger to me, the Tribunal undermined the danger I will face if I compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life. 4. Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 21 June 2016 in deciding my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed. (Errors in original.) 11 The written submissions filed by the applicant identify a further two discrete grounds and then several broadly stated, largely unparticularised, grounds. The discrete grounds are: 1. [The FCCA] failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test of persecution in relation to the Complementary Protection Visa provision contained in section 36(2) (aa) of the Migration Act 1958. The AAT failed to separate the claim to be refugee and fear of harm test for the provision of the Complementary Protection. 2. [The FCCA] failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. I was denied procedural fairness when the Tribunal made opinion based on assumption and possibilities. The Tribunal failed to assess the current situation in Bangladesh where thousands of innocent people like me are arrested recently and harassed by the Awami League Government Authority. In assessing danger to me the Tribunal undermined the danger I will face if I compelled to return Bangladesh as Returned Asylum seeker. (Errors in original.)

Consideration 12 In order for the applicant to obtain leave to appeal, I must be satisfied that in all the circumstances, the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal and, assuming that the decision is wrong, that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9. For the reasons that follow, in my view, the application fails at the first step.

Discrete grounds (grounds 1-4 of the draft notice of appeal and grounds 1 and 2 of applicant's written submissions) 13 Ground 1 of the draft notice of appeal asserts, without particulars, that the primary judge erred by failing to find that the Tribunal's decision was not supported by any evidence. But at [11]-[45] the Tribunal's reasons set out, in great detail, the evidence presented to it in respect of the applicant's claims. At [18]-[45] the Tribunal sets out the questions that were asked of the applicant to seek to clarify what the Tribunal considered to be apparent inconsistencies, contradictions or ambiguities in his evidence, as well as his answers to those questions. Having set out those matters, the Tribunal's reasons, at [46]-[52], set out in cogent and detailed terms the Tribunal's findings with respect to the applicant's credibility and its reasons for rejecting his evidence. There is, in my view, nothing in the Tribunal's reasons or the primary judge's decision to support the contention that the findings in respect of the applicant's application were unsupported by evidence. 14 Ground 2 of the draft notice of appeal contends that the primary judge erred by failing to "take up and separately deal with the factual issues". To the extent that this ground assumes that it was open to the primary judge to revisit the factual bases of the Tribunal's decisions, it provides no arguable basis for impugning the primary judge's decision. The FCCA's function on appeal is to review for jurisdictional error, not revisit merits. This ground also includes a claim concerning alleged findings as to relocation, which is irrelevant to the applicant's case because, having determined that s 36(2)(a) and (aa) were not satisfied, no question of relocation arose before, or was determined by, the Tribunal. 15 Ground 3 of the draft notice of appeal contends that the applicant was denied procedural fairness "when the Tribunal member made opinion based on assumption and possibilities without any proper investigation". The limited particulars refer to the Tribunal's assessment of the conditions in Bangladesh and the risk faced by the applicant. Although framed in terms of procedural fairness, this ground is in reality directed to the merits of the Tribunal's decision. In any event, the applicant was given the opportunity to, and did, put written and oral submissions to the Tribunal and he responded to the Tribunal's questioning in respect of his claim (including the Tribunal's concerns as to his credibility). I can find nothing in the Tribunal's reasons to suggest that the applicant was denied procedural fairness, such that the primary judge could be said to have erred by not identifying the issue. 16 Ground 4 of the draft notice of appeal contends that other procedures required by the Act were not followed by the Tribunal in reaching its decision. That claim is not particularised, nor does it appear to have been put to the primary judge. To the extent that it is intended to go further than the applicant's principal submissions on procedural fairness, the claim is without merit. The path of reasoning of the Tribunal, set out at [13] above, was an orthodox method of fact-finding and there is nothing in the Tribunal's reasons that points to procedural irregularity. 17 By ground 1 of the applicant's filed written submissions, the applicant contends with respect to s 36(2)(a) and/or (aa) that the primary judge erred by failing to find that the Tribunal conflated the tests prescribed by those paragraphs and impermissibly assessed the applicant's claims against each paragraph together. That submission is unsustainable. The Tribunal considered the question of whether Australia owed the applicant protection obligations under the Refugee Convention at [18]-[52] before, at [53]-[56], turning separately to consider whether there was a real risk that the applicant would suffer significant harm if removed from Australia (for the purposes of s 36(2)(aa)). 18 Ground 2 of the applicant's filed written submissions includes a claim substantively similar to that already addressed at [14]-[15] above in respect of grounds 2 and 3 of the draft notice of appeal. It can be put to one side for the reasons there stated.

Other grounds 19 The grounds relied upon by the applicant are not consistently numbered in and across each of the documents constituting the applicant's written material before this Court. For present purposes, the other grounds relied upon by the applicant (that is, other than those specifically stated in the applicant's written submissions and draft notice of appeal) can be broadly characterised as follows: (a) those concerning the correct test(s) for determining whether a person meets the requirements of s 36(2)(a) and/or (aa); (b) those concerning an alleged failure by the primary judge to engage with the evidence before the Tribunal or factual findings made in respect of that evidence; and (c) further procedural fairness claims.

Construction of s 36(2)(a) and/or (aa) 20 The applicant contends that the Tribunal failed to apply the correct test for determining whether the requirements of s 36(2)(aa) were met. His written submissions state: The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm. The Tribunal failed to assess my fear of persecution in pursuance to current explosive situation in Bangladesh which has been highlighted in all of the world. (Errors in original.) 21 Putting aside the reference to persecution in the context of s 36(2)(aa) (persecution being a consideration in the context of s 36(2)(a)), it is apparent that the substance of the applicant's complaint with respect to the tests for s 36(2)(a) and/or (aa) only concerns the merits of the Tribunal's decision and the Tribunal's assessment of evidence that flowed directly from its findings as to the applicant's credibility. That complaint is directed to the weight that was given to the applicant's evidence in the course of assessing his circumstances against the s 36(2) criteria. Accordingly, I find no error in the primary judge's construction of the relevant provision.

Factual matters 22 The applicant makes various other claims with respect to the Tribunal's findings of fact and contends that the Tribunal erred in respect of the material it considered (including, relevantly, by failing to conduct its own investigation to "verify" his evidence) and the weight it gave to certain evidence (including the applicant's own testimony). 23 The applicant does not submit that the Tribunal failed to inquire into certain readily ascertainable facts, in respect of which the Tribunal was under a duty to inquire: compare, e.g,. Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170. His complaint about the alleged failure to "verify" his claims is, as I understand it, a complaint that the Tribunal failed to seek further evidence to overcome the credibility concerns it held with respect to evidence already given. That cannot and does not disclose relevant error. As the Minister rightly submitted, the Tribunal is not required uncritically to accept any and all allegations made by an applicant: see also Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2. That is not to say that adverse findings as to credit can never expose jurisdictional error: see, e.g. SZVAP and Another v Minister for Immigration and Border Protection & Anor (2015) 233 FCR 451 at [14]-[23]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38]. But the Tribunal's findings on credit in this instance do not appear to be illogical, irrational or unreasonable, nor do they appear to have been arrived at in a manner that denied the applicant procedural fairness. On the contrary, the Tribunal gave detailed and persuasive reasons for its findings that the applicant's evidence was in critical respects implausible and inconsistent, having provided him with ample opportunity to address the Tribunal's concerns. Accordingly, I can see nothing in the Tribunal's reasons that exposes jurisdictional error of the kinds discussed in SZVAP and Another v Minister for Immigration and Border Protection & Anor (2015) 233 FCR 451 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146. 24 The applicant also claims that the Tribunal erred by failing to consider "each integer" of his claim, making its decision with a "closed mind" and by not taking into account all of the oral and written submissions put to it. The applicant also contends that the Tribunal's adverse credibility findings constituted a failure to take into account relevant considerations. Again, the various iterations of this submission that are scattered throughout the applicant's written material are premised on the misconception that it was not open to the Tribunal to reject evidence on the basis of its assessment of the applicant's credibility. For reasons already given, this ground is not arguable. To the extent that the applicant claims that the Tribunal made its decision with a closed mind, no meaningful particulars are provided to support this allegation and I can see nothing in the Tribunal's reasons to suggest that the Tribunal was affected by bias or anything of the sort.

Procedural fairness 25 Finally, the applicant contends that the primary judge erred by not finding that the Tribunal's failure to take into account country information other than that produced by DFAT constituted a denial of procedural fairness, citing Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30 (Muin). In that case, the applicant had been misled by an assurance of the Tribunal that it had considered certain material that had not actually been forwarded to it by the delegate. But Muin does not assist the applicant here. The applicant did not contend before the primary judge that he had been led to believe that the Tribunal would consider certain country information and that he put his case to the Tribunal on that basis. Moreover, it was plainly open to the Tribunal to rely on the DFAT country material: see, e.g., NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

Conclusion 26 For the reasons given above, I am not satisfied that the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal. The application for leave to appeal is dismissed. The applicant should pay the first respondent's costs, to be agreed or assessed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.