BWC15 v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellant pay the first respondent's costs as agreed or as taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 The appellant is a citizen of Lebanon who arrived in Australia on 10 September 2013. On 21 October 2013 the appellant lodged an application for a Protection (Class XA) visa ("visa"). On 12 August 2014 a delegate of the first respondent ("Minister") refused the appellant's application. On 20 August 2015 the second respondent ("Tribunal") affirmed the delegate's decision. The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court. The subject of this appeal is the primary judge's dismissal of that application on 31 August 2016. The primary judge's judgment is published as BWC15 v Minister for Immigration & Anor [2016] FCCA 2436. 2 The task of the primary judge was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) ("Migration Act"); and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The task of this Court is to determine whether the primary judge's judgment is affected by appellable error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ). 3 As the Tribunal set out at [5]-[11] of its reasons, the appellant made various claims in support of his application for a visa. He claimed that he was a Shi'a Muslim whose employment as a painter and cleaner required him to work in different suburbs of Beirut, and that he faced harassment, criticism and abuse in the Christian and Sunni areas because he was Shi'a. He claimed he had experienced discrimination and abuse at work, and that the political situation in Lebanon is explosive and that violent acts can happen at any moment. 4 The appellant also claimed that if he returned to Lebanon he would be caught up in a bombing. He claimed that there had been six or seven explosions in recent times, and that he had avoided being caught in an explosion by five minutes on one occasion shortly before he left Lebanon. He also claimed he would be kidnapped because he supported groups fighting Islamic State ("IS"). He said that he supported all groups that fought IS, such as the Lebanese and Syrian armies, Hizbullah and the US and Western governments. 5 The manner in which the Tribunal dealt with each of those claims is, with respect, ably summarised in the reasons of the primary judge at [8]-[15] which I will here recount. 6 The Tribunal found that the appellant's evidence regarding his claims lacked credibility and that he had fabricated his claims in order to be granted a protection visa. The Tribunal dealt with the appellant's claim to have been caught in a bombing. The Tribunal did not accept that the appellant was nearly caught in a bomb blast before he came to Australia, or that there was a real chance that he could be caught in a bomb blast on return to Lebanon. The Tribunal rejected the claim because of an inconsistency between the appellant's evidence about the timing of the blast and media reports about that bomb blast. 7 In respect of the risk of the appellant being caught in a bomb blast in the future, the Tribunal considered that, while there had been a number of bombings in Shi'a areas of Beirut, there was "a very small number of bombings and an equally small number of casualties out of a population in the southern suburbs of Beirut of 900,000 people". The Tribunal went on to find that, even though it was satisfied that the appellant would not be targeted, or be the incidental victim of a bomb attack because of where he lived, the fact that the appellant had financial resources to relocate if he chose, but was unwilling to do so, indicated that he had no fear of returning to the area in which he lived. 8 The reasons of the Tribunal then turned to the question of kidnapping and the Tribunal found that there was no real chance that the appellant would be the target of a kidnapping simply because he was of the Shi'a faith or because he supported those who fought IS. First, there was no country information to indicate that Shi'a Lebanese civilians were targeted for kidnapping, and secondly, there was no suggestion that either the appellant or any members of his family or any friends had been the subject of kidnapping attempts. In respect of the appellant's support of those fighting IS, the Tribunal found that such a sentiment would be widely held and there was no country information to suggest that the appellant might have a real chance of being targeted for doing so. 9 Finally, the Tribunal did not accept that the appellant had experienced abuse and discrimination at work on the basis of country information. 10 On the basis of all of those findings the Tribunal was not satisfied that the appellant met the criteria for the grant of the visa and affirmed the decision under review not to grant the appellant a visa. 11 Before the Federal Circuit Court the appellant raised two grounds. The first was that the Tribunal did not understand his situation and failed to accept the abuse and discrimination that the appellant experienced at work, as well as his fear of harm in Lebanon. The second ground was that the way in which the Tribunal conducted the hearing was not fair. 12 The appellant appeared at the hearing before the Federal Circuit Court judge. He was unrepresented and addressed both of his grounds. As the primary judge recorded in the reasons given, the appellant said a number of things that effectively went to the merits of the findings of fact made by the Tribunal. The primary judge recorded that the appellant argued that the Tribunal had no right to question his credibility. The primary judge observed, I think correctly, that it was entirely appropriate for the Tribunal to make findings as to credit in carrying out its fact-finding task. The findings made, including as to credit, were the subject of reasons and, as the primary judge said at [19], were logically open on the material and other evidence before the Tribunal. On that basis the primary judge determined that the first ground did not raise jurisdictional error and was rejected. 13 The primary judge then dealt with the appellant's second ground concerning the conduct of the hearing by the Tribunal. The primary judge recorded that the appellant explained that the Tribunal member had spoken to him in a rough tone. The appellant requested that there be an adjournment in order for him to file the compact discs of the Tribunal hearing so that the court could listen to them. That adjournment application was refused. I will return to the compact discs shortly. 14 In any event, the primary judge dealt with the particular passage where the appellant claimed that the Tribunal had spoken to him in a rough voice. The passage is set out at [27] of the primary judge's reasons. The primary judge noted at [28] that it was asserted that when the Tribunal member said "look at me", the Tribunal member spoke roughly or in a rough tone. A fair reading of the primary judge's reasons suggests to me that the primary judge proceeded on the presumption that the words "look at me" were said roughly or in a rough tone. 15 As the primary judge noted at [28], the statement of the Tribunal had to be seen in the context of an earlier passage in the transcript in which the Tribunal had asked the appellant to maintain eye contact with the Tribunal member during the hearing. The primary judge regarded the Tribunal as seeking to ensure that it had every opportunity of assessing the appellant's demeanour when he was giving evidence. The primary judge considered that what was said, in that context, even if said in a rough tone, provided no basis for considering that the Tribunal had made up its mind before the hearing, or in other words was affected by bias. 16 The primary judge then recorded that the appellant made two further points during the course of the hearing before the Federal Circuit Court. The first, was that the Tribunal's manner was trying to attack the appellant's credibility; and, secondly, that the Tribunal had based its views upon the Tribunal member's own observations, having been in Lebanon from time to time, despite having never actually lived there. The primary judge dealt with that second matter first. He observed that it is permissible for a Tribunal member to use his or her own knowledge of a particular area or country in reviewing a delegate's decision. Support for that proposition, as his Honour recounted, is set out in the judgment of Branson J in NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927. As the primary judge said, what is important if the Tribunal does rely upon his or her observations or experience is that the applicant before it is given an opportunity to respond to those observations. The primary judge regarded the Tribunal as having made clear, in this case, the observation or experience of the Tribunal member relied upon. 17 As for the appellant's assertion that he had not received a fair hearing, the primary judge considered the entire transcript of the hearing before the Tribunal and concluded at [35] that the approach taken by the Tribunal was consistent with its duties. The primary judge observed that the Tribunal had tested the appellant's credibility and had raised credibility as an issue at the hearing, but reasoned that that approach was consistent with the task required of the Tribunal and was not indicative of bias. The primary judge concluded that there was no jurisdictional error in the Tribunal's decision and the application for judicial review was dismissed. 18 By his Notice of Appeal to this Court, the appellant raised one ground. In essence, all that ground of appeal says is that the primary judge misunderstood the appellant's situation. 19 Before me today the appellant appeared unrepresented and assisted by an interpreter. The appellant was invited to make submissions and he did so. He complained about the Tribunal taking into account its own experience of Lebanon. He said that the Tribunal had told him that the Tribunal member was familiar with Lebanon. He complained that the Tribunal member had not lived through things as the appellant had, including the torture and the fear experienced by the appellant. He suggested that the Tribunal member was pretending to know the situation in Lebanon. He said that, although the Tribunal had a general idea, the Tribunal member had not gone through what he had gone through. The appellant also said that the Tribunal had failed to accept that he had been nearly caught by a bomb. He complained that the Tribunal had not found him to be reliable or truthful, including in relation to that matter. 20 He said that, although he may have forgotten to mention some things, it did not mean that the explosion he complained of did not happen. He noted, as was noted in the Tribunal's decision, that he provided post-hearing media reports of bombings that had occurred in Lebanon. He said that a number of people were killed in bombings. He asserted that any reasonable and logical person would conclude that the Lebanese people are suffering. 21 The primary judge dealt with the use by the Tribunal member of his own knowledge and experience of the situation in Lebanon. I have recounted that already. I see no error in the primary judge's approach to that issue. In relation to the appellant's exposure to explosions and the extent to which people living in Beirut are exposed to bombings, the Tribunal concluded that there had been a very small number of bombings and an equally small number of casualties out of a population in the southern suburbs of Beirut of 900,000 people, such that the chance of the applicant being caught in a blast was remote. In coming to that view the Tribunal took into account the post-hearing media reports provided by the appellant. 22 In essence, the Tribunal came to the view that the risk for the appellant of being exposed to a bomb in the southern suburbs of Beirut was remote on the material before it and without reference to the Tribunal Member's own experience. On that material that factual conclusion was open and available. It was not a conclusion in relation to which it could be said that there was no evidence available to support it. Nor was it a conclusion that could not be logically supported from the evidence that was before the Tribunal. 23 Further, and in any event, the Tribunal also found that the appellant's financial resources would allow him to relocate away from the southern suburbs of Beirut if he so chose. The Tribunal concluded, as I have earlier indicated, that the appellant's unwillingness to do so indicated that the appellant had no fear of returning to the area in which he lived. 24 I can understand why the appellant may be disappointed by the manner with which his application was dealt. But nothing raised before the primary judge, nor anything raised before me today, suggests to me that the Tribunal's decision is infected by jurisdictional error. I am not satisfied that the primary judge erred in failing to identify jurisdictional error on the part of the Tribunal. 25 For those reasons the appeal must be dismissed. 26 There is one further matter that I need to address. During the course of the hearing the appellant sought to provide to the Court a compact disc of the hearing before the Tribunal. I rejected the tender of that material. The appellant sought to rely upon it to make a case that he had been roughly treated by the Tribunal member throughout the course of the hearing before the Tribunal. That the Tribunal member had roughly spoken to the appellant throughout the course of the hearing was not an allegation made in the grounds of appeal before this Court, nor is it anything of which the appellant gave the Minister notice. As I said earlier, the appellant had sought an adjournment before the Federal Circuit Court in order that the compact disc could be provided to the Court and listened to by the judge. That adjournment application, as I have said, was rejected. It is clear that if I had permitted the appellant to raise this new argument, of which no notice had been previously given, an adjournment would have been required in order, at the least, to put the Minister on notice of the argument and give the Minister's representative an opportunity to consider the recording of the Tribunal hearing. 27 I rejected the tender of the compact disc because, in my view, there is no justification for permitting the appellant to run an argument for the first time now without having given any prior notice of it. That is particularly so given that if leave to make the new argument was given, an adjournment would be necessary and obvious prejudice to the Minister would flow. For those reasons I did not receive the audio disc of the Tribunal's hearing. In any event, as I have said, the primary judge determined the appellant's application in the court below on the presumption that the Tribunal had spoken roughly to the appellant but nevertheless found that such conduct fell short of actual or apprehended bias. I see no error in the primary judge's approach, and on this basis the receipt of the compact disc would serve no utility. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.