BTU18 v Minister for Home Affairs

[2019] FCA 540

Federal Court of Australia|2019-04-18|Before: Wigney J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2019-04-18

Before

Wigney J

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

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

[2]

WIGNEY J: 1 The appellant is a national of Bangladesh. He arrived in Australia on 12 July 2008 as the holder of a TU-572 (student) visa. On 29 June 2011, the appellant's student visa was cancelled. On 2 August 2016, or shortly thereafter, the appellant applied for a Protection (Class XA) (subclass 866) visa. In September 2016, a delegate of the (then) Minister for Immigration and Border Protection refused to grant the appellant a Protection visa. The appellant then applied to the Administrative Appeals Tribunal for a review of that decision. That application was unsuccessful. The appellant then challenged the Tribunal's decision in the Federal Circuit Court of Australia pursuant to s 476 of the Migration Act 1958 (Cth). He contended, in short terms, that the Tribunal had failed to take into account his medical condition in assessing his credibility. He also argued that the Tribunal failed to take into account two letters that he had provided to the Tribunal in support of his review application and had acted unreasonably in not contacting the author of one of those letters. The primary judge rejected those contentions and dismissed the appellant's application with costs. 2 The appellant appealed the judgment of the primary judge. He contended that he was denied procedural fairness when applying to this Court for review because the primary judge had not published written reasons for the decision to dismiss his judicial review application by the time he filed his notice of appeal on 28 August 2018. He also contended that the primary judge had denied him procedural fairness and had made a number of errors in arriving at his decision.

[4]

in the tribunal 6 The appellant lodged his application for review of the delegate's decision with the Tribunal on 14 September 2016. On 24 October 2016, the Tribunal invited the appellant to appear before it to give evidence and present arguments relating to the issues arising in his case. The appellant was in immigration detention at the time, so the invitation was to appear by video link. The appellant responded to the invitation on 14 November 2016. He notified the Tribunal that he had since received a bridging visa and wanted to attend the Tribunal hearing in person. The Tribunal responded to the appellant on the same day and confirmed that arrangements would be made for a new hearing date and location. The Tribunal subsequently notified the appellant that his request to appear in person had been agreed and that the new hearing date was 28 April 2017. 7 On 18 April 2017, the Tribunal received an email from a solicitor advising that he had been instructed to act for the appellant. The solicitor requested that the hearing be relisted to a time approximately 30 days from 28 April 2017 to allow him time to prepare a further detailed statement from the appellant and to obtain documents pursuant to a request for access to documents under the Freedom of Information Act 1982 (Cth). The Tribunal and the solicitor thereafter continued to correspond concerning the rescheduling of the hearing and the steps that should be taken before the hearing. 8 The appellant appeared at a hearing before the Tribunal on 21 July 2017. He was represented by a solicitor. The hearing was also conducted with the assistance of a Bengali interpreter. A further hearing was held on 29 September 2017. The appellant was also represented and had the assistance of an interpreter at that further hearing. Following the hearings, the appellant, through his solicitor, submitted two further statutory declarations on 13 and 16 October 2017 which addressed comments made by the Tribunal during the hearing about the materiality of the appellant's age at the time of his political involvement in Bangladesh. The appellant also provided a further statutory declaration on 20 November 2017 in response to an invitation from the Tribunal to comment on certain information which the Tribunal considered relevant to affirming the decision under review. 9 The Tribunal decided to affirm the decision of the Minister's delegate to refuse the grant of the Protection visa. The fundamental reason given by the Tribunal for affirming the refusal of the visa was that the Tribunal found that the appellant was not a credible witness and that the events and circumstances that formed the basis of his application did not occur or exist. 10 The Tribunal gave a number of reasons for rejecting the appellant's evidence and claims. 11 First, the Tribunal found that when asked to provide further details about his written claims, the appellant seemed intentionally evasive, gave long-winded and often irrelevant answers, contradicted himself, embellished his written claims and made new claims (Reasons at [21]). 12 Second, the Tribunal considered that information from independent sources in relation to the political situation in Bangladesh undermined the appellant's claims (Reasons at [33]-[36]). 13 Third, the Tribunal found that the appellant's delay of at least five years in applying for the Protection visa significantly undermined the credibility of his claims (Reasons at [37]). 14 In reaching its conclusion concerning the appellant's credibility the Tribunal had regard to documents provided by the appellant during the course of the hearings. Those documents included two letters relating to his membership of the BNP from two persons who the primary judge referred to as Mr G and Mr A. The Tribunal considered that those letters should be given no weight, particularly given its findings in relation to the appellant's "thorough lack of credibility" (Reasons at [40]). 15 The Tribunal also concluded that the information provided in the letter from Mr G was not reliable. That was because Mr G's statement that the appellant was "currently working hard for the BNP" was inconsistent with the appellant's own evidence (Reasons at [41]). The Tribunal noted that it had raised this issue with the appellant at the first hearing and had attempted to contact Mr G but was unable to reach him. The Tribunal also noted that the appellant did not request the Tribunal to take evidence from Mr G at the second hearing, but that he did ask the Tribunal to contact Mr G about his political profile and activities in one of the statements he submitted to the Tribunal after the conclusion of the hearings. The Tribunal declined to do so. That was on the basis that the Tribunal had decided that the information provided by Mr G was unreliable and that any further information elicited from Mr G would be similarly unreliable (Reasons at [41]). 16 The Tribunal also had regard to the appellant's response to the Tribunal's invitation to him to comment on potentially adverse information pursuant to s 424A of the Act. The potentially adverse information concerned visits the appellant had apparently made to the Australian High Commission in Dhaka during the time that he claimed to be in hiding. The Tribunal found that it was not implausible that a person who feared for their safety in their home country may take some risks, such as visiting the embassy of another country, to obtain a visa. The Tribunal therefore gave the information referred to in the s 424A letter no weight in making its decision (Reasons at [42]). 17 Finally, the Tribunal had regard to evidence concerning the appellant's mental state. That evidence, in the form of letters from a psychiatrist and two psychologists, was that the appellant suffered from major depression, post-traumatic stress disorder and generalised anxiety disorder. The Tribunal accepted that diagnosis, but found that the appellant's mental health did not impair his ability to give evidence and present arguments at the hearing (Reasons at [17]). The Tribunal also said that it gave "no weight to the medical evidence in assessing the veracity of the [appellant's] protection claims as those claims were self-reported by the [appellant] to the medical professionals" (Reasons at [18]). As will be seen, the point that the Tribunal appeared to be making in that regard was that it gave little weight to the fact that the appellant had recited the details of his claims to the medical practitioners. 18 As has already been noted, the Tribunal ultimately rejected virtually all of the claims made by the appellant and found that there was not a real chance that he would face persecution or significant harm if he returned to Bangladesh. The Tribunal accordingly found that the appellant did not meet the criterion in either ss 36(2)(a) or 36(2)(aa) of the Act and affirmed the decision not to grant the appellant a Protection visa.

[5]

in the circuit court 19 The appellant filed an application for judicial review of the Tribunal's decision in the Federal Circuit Court on 9 April 2018. That application contained the following four grounds (as drafted): 1. The Tribunal failed to afford procedural fairness to the applicant. Particulars A. The Tribunal in its decision noted (Para 18) that it would not give no weight to the medical evidence in assessing the veracity of the applicant's protection claims as those claims were self-reported by the applicant to the medical professionals. This adverse information was not put it to the applicant, particularly the adverse view of the Tribunal why it would not accept the report from the medical professionals and thereby denied a natural justice opportunity to the applicant to respond. B. The Tribunal noted that the applicant's witness Mr George is not a reliable witness and disregarded his written evidence. The Tribunal failed to put on notice to the applicant that it considers Mr George's evidence is not reliable. As an Inquirer who conducts inquisitorial inquiry the Tribunal has an obligation to put the visa applicant on fair notice orally or in writing of critical matters of concern to the Tribunal. In CJU15 v Minister for Immigration and Border Protection [2018] FCAFC 45 (28 March 2018), the Federal Court held that the Tribunal decision is infected with a legal error because it denied procedural fairness to the applicant by failing to put the applicant on notice about the adverse findings. 2. The Tribunal failed to comply with s424(A) or s 424 (AA) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review. The Tribunal took into account information that had been given by the Appellant orally to the Minister's Department in determining whether the Appellant was a truthful witness. That information was not put to the Appellant in accordance with s424 (A) or 424 (AA) of the Act. The Tribunal raised concerns which seriously undermined the credibility of the appellant on the basis of following 'information' which should have been put formerly under section 424 (a) or Section 424 (aa) to put on notice to the applicant that such information would be the reason or part of the reason for affirming the decision under review and the applicant should have been advised that he can either orally comment or request additionally time to respond in writing. It should be noted that though the applicant enclosed the Department of Home Affairs decision record of his protection visa refusal, the following information raised by the Tribunal not mentioned in the decision record. Therefore, the applicant respectfully submit that such information should have been put under section 424 a or 424 aa of the Migration Act. A. The Tribunal in its decision (Para 30) noted that the applicant had told the delegate that he made many Facebook posts and was threatened via his account but failed to mention that in the first Tribunal hearing and raised significant concerns on the credibility of the applicant. 3. The Tribunal failed to engage or failed to provide realistic consideration to claims submitted by the applicant. Particulars The applicant noted that he was accused as an agent of Pakistan. (See AAT decision record 30). The Tribunal overlooked the above claim to assess whether he would face harm on the basis that he would be perceived as an agent of Pakistan. 4. The Tribunal failed to consider applicant's political opinion and activities and his association with the Australian Bangladesh Nationalist Party activists in Australia. Particulars The applicant claimed that he supports the BNP in Australia and lived with a BNP leader in Australia and supports BNP in Australia. The Tribunal, though considered under the Refugee Convention reasons, however, failed to provide adequate consideration to his moral and physical support to the BNP in Australia under the Complementary Protection ground. 20 The appellant's application was heard by the primary judge on 7 August 2018. 21 At the hearing the appellant made an oral application for an adjournment of the hearing on the basis that he had only received the first respondent's submissions on 31 July 2018. He stated that he wished to obtain an adjournment so that he could further respond to those submissions and get input from his lawyer. The adjournment application was opposed by the Minister. 22 The primary judge refused the appellant's application for an adjournment. His Honour found that the appellant was given a proper opportunity to file his submissions and to inform himself of the Minister's submissions. His Honour also appeared to doubt that the appellant was likely to be able to secure legal representation or assistance if he was given an adjournment. His Honour found that the appellant had given no satisfactory explanation for why he had not been able to secure legal assistance prior to the hearing, and reasoned that had the appellant been in any position to secure legal representation or assistance, he would have done so by the time of the hearing. 23 The primary judge then heard submissions from the parties. Having heard submissions, his Honour dismissed the appellant's application and gave ex tempore reasons. 24 It would appear from the judgment of the primary judge that the main contentions that were pressed by the appellant in support of his judicial review application were those that were raised in the appellant's oral submissions. Those contentions were that "the Tribunal had failed to take into account his medical condition in assessing his credibility" (Judgment at [33]) and that "the Tribunal had failed to take into account the two letters written by Mr A and Mr G" (Judgment at [35]). The primary judge nevertheless addressed each of the appellant's grounds of review in his reasons.

[6]

Ground 1 25 The primary judge found that on the face of the Tribunal's reasons the Tribunal had complied with its procedural fairness obligations under the Act (Judgment at [38]). The primary judge noted in that regard that the appellant had appeared at two "real and meaningful" hearings in which he had a proper opportunity to present evidence and arguments. The primary judge found that the Tribunal had accordingly complied with its obligations pursuant to s 425 of the Act. 26 The primary judge rejected the appellant's contention that he had been denied procedural fairness because the Tribunal had given no weight to the medical evidence in assessing the veracity of his claims. Regrettably, however, the precise basis upon which that contention was rejected is somewhat unclear from his Honour's reasons. The extent of his Honour's reasoning was that the Tribunal expressly referred to the medical evidence and took it into account in assessing the appellant's credibility (Judgment at [39]). His Honour did not specifically address the question whether it was open to the Tribunal to give the medical evidence no weight in assessing the veracity of the appellant's Protection visa claims, or the extent to which that finding could impact on the question whether the appellant was afforded procedural fairness. His Honour did not appear to address the appellant's argument that the Tribunal did not disclose to him that it was not going to give any weight to the medical evidence in assessing the veracity of his claims. 27 As for the appellant's assertion that he was denied procedural fairness because the Tribunal did not put him on notice that it doubted the reliability of Mr G, the primary judge reasoned that it was a matter for the Tribunal to determine what weight to give the letter from Mr G (Judgment at [42]). In relation to the appellant's submission that the Tribunal failed to contact Mr G, the primary judge noted that the Tribunal did attempt to contact Mr G at the first hearing and that no request was made to do so at the second hearing (Judgment at [42]). His Honour found that it was open and not unreasonable for the Tribunal to decide not to contact Mr G as a result of the request made after the hearing, particularly in light of the inconsistency between the contents of Mr G's letter and the appellant's own claims (see also Judgment at [35]). The primary judge did not, however, specifically address the appellant's apparent argument that he was denied procedural fairness because the Tribunal did not put him on notice that it considered Mr G's "evidence" to be unreliable.

[16]

Ground five - Alleged denial of procedural fairness by the Tribunal 48 This ground coincided with ground one of the appellant's grounds of review in the Circuit Court. It may be interpreted as an assertion that the primary judge erred in rejecting that ground. 49 While it would be fair to say that the reasons of the primary judge in relation to this ground are not easy to comprehend, and equally fair to say that the primary judge did not really engage with the appellant's apparent contention of denial of procedural fairness, it nevertheless cannot be accepted that the primary judge erred in rejecting this ground. The particularised assertions that were said to support the allegation of denial of procedural fairness included that the Tribunal had failed to disclose adverse information to the appellant. That adverse information was said to be that the Tribunal gave no weight to his medical evidence and that the Tribunal did not consider Mr G's evidence to be reliable. 50 There are at least two fundamental difficulties with the contention that any failure on the Tribunal's part to disclose those matters to the appellant constituted a denial of procedural fairness. 51 First, it ignores the effect of s 422B of the Act, which provides that Div 4 of Pt 7 of the Act is "taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". The appellant did not point to any provision in Div 4 which was breached or not properly applied by the Tribunal by reason of the alleged non-disclosure. Sections 424AA and 424A, which are in Div 4 of the Act, specifically deal with the Tribunal's obligation to disclose adverse information. The appellant did not contend that the Tribunal failed to comply with either of those sections in relation to the two particularised items of information. 52 Second, the fact that the Tribunal might ultimately decide to give no weight to the medical evidence was not a fact that the Tribunal was in any event required to disclose to the appellant, either pursuant to ss 424AA or 424A of the Act or otherwise as a matter of common law procedural fairness. Nor was it required to disclose that it might ultimately find that the content of Mr G's letter was unreliable. 53 Procedural fairness generally requires an administrative decision-maker to put a person who might be affected by the decision on notice of "any adverse conclusion which has been arrived at which would not obviously be open on the known material"; but that does not extend to the disclosure of the decision-maker's "mental processes or provisional views": Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. Nor is it necessary to disclose the decision-maker's opinions, doubts or subjective appraisals: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J). 54 Third, the Tribunal did not err in any way in giving the medical evidence no weight for the reasons it gave. It was in all the circumstances open to the Tribunal to give no weight to the medical evidence in assessing the veracity of the appellant's claims. The Tribunal's finding that it gave no weight to the medical evidence appeared to relate solely to whether the medical reports somehow corroborated the appellant's "protection" claims, which related to him suffering harm in Bangladesh, because the appellant had given the medical practitioners an account of the events that gave rise to that harm. The Tribunal found in that regard, that the evidence, in the form of medical reports, should be given no weight because the hearsay account of the harm the appellant had suffered which was reproduced in the reports was "self-reported" (Reasons at [18]). 55 The weight to be given to any piece of evidence is ultimately a matter for the Tribunal. The Tribunal could not be said to have erred in giving no weight to the hearsay statements in the letters from the medical practitioners. It should be emphasised, however, that the Tribunal did not doubt the diagnoses. It simply gave no weight to the hearsay statements of harm. It should also be noted that the appellant was clearly on notice that the reliability and credibility of his claims concerning the harm that he had suffered in Bangladesh was in issue, both because the delegate had previously found his claims to have been unreliable and because the Tribunal questioned the appellant extensively about his claims. The Tribunal was not obliged to tell the appellant that the hearsay accounts of the harm he had suffered which were contained in the medical reports did not further advance his case. 56 Fourth, it was also open to the Tribunal to find that the statements in Mr G's letter concerning the appellant's membership of, or association with, the BNP in Australia were not reliable. The main reason given by the Tribunal for finding that the statements in Mr G's letter were unreliable was that they were inconsistent with the appellant's evidence. That was a sound and logical reason for rejecting the statements. Perhaps more significantly, in the context of the claim of denial of procedural fairness, it is readily apparent that the Tribunal put the appellant on notice that it considered that the statements in Mr G's letter were inconsistent with his evidence (see Reasons at [41]). The appellant's contention that the Tribunal did not put him on notice that it might consider Mr G's "evidence" to be unreliable accordingly has no substance or merit in any event. 57 Finally, the Tribunal was under no obligation to contact Mr G or take evidence from him. As the Tribunal noted, it had unsuccessfully attempted to contact Mr G during the first hearing and the appellant did not, formally or otherwise, request the Tribunal to take evidence from Mr G at the second hearing. That request came after the conclusion of the second hearing. The Tribunal considered that request and decided not to accede to it because it concluded that any further information that Mr G could provide would not be reliable given the unreliability of the statements in his letter (see Reasons at [41]). There was no error in that approach: cf. BTF15 v Minister for Immigration and Border Protection (2016) 69 AAR 376; [2016] FCA 647 at [54]-[55]. 58 The appellant did not advance any other meaningful argument in support of his contention that the Tribunal had denied him procedural fairness. There was no basis for so finding. The primary judge was ultimately correct to reject ground one of the review application. It follows that ground five of the notice of appeal has no merit.

[17]

Ground six - Alleged failure to comply with ss 424AA or 424A of the Act 59 This ground coincided with ground two of the appellant's grounds of review in the Circuit Court. It may again be interpreted as an assertion that the primary judge erred in rejecting that ground. The primary judge was correct to reject the contention that the Tribunal contravened, or did not comply with, ss 424AA or 424A of the Act. 60 The appellant's case as particularised in this ground of appeal was that the Tribunal was obliged to disclose to him information that the appellant gave to the delegate concerning certain Facebook posts which he contended showed his political activity in Australia. There are fundamental difficulties with the appellant's contentions in that regard. 61 First, it is clear from the Tribunal's reasons (at [30]) that the appellant repeated the evidence that he gave to the delegate at the second Tribunal hearing. The information was accordingly information that the appellant "gave for the purposes of the application for review" for the purposes of s 424A(3)(b). Section 424A accordingly did not apply to that information. 62 Second, as the primary judge accepted, the oral evidence given to the Minister's delegate concerning the Facebook posts was not adverse information triggering the obligation in s 424A of the Act. The evidence to the delegate did not contain, comprise or constitute and rejection, denial or undermining of the appellant's protection claims. The Tribunal did not rely on any inconsistency between the evidence given to the delegate on this topic and the evidence he gave before the Tribunal. The Tribunal's reasons for rejecting his evidence concerning the Facebook posts was that in giving that evidence the appellant "seemed intentionally evasive" and appeared to have "invented" his evidence about the abusive posts to his Facebook account to "embellish the claim" (Reasons at [30]; see also [44]). 63 Third, for the reasons given earlier in the context of ground five, the Tribunal was under no obligation to disclose to the appellant that it might reject his evidence concerning the Facebook posts. 64 The primary judge was correct to reject that the Tribunal failed to comply with s 424A of the Act in relation to the appellant's information or evidence concerning the Facebook posts.

BTU18 v Minister for Home Affairs

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