CLA15 v Minister for Immigration and Border Protection

The FCCA proceeding 5 As set out in the primary judge's reasons for judgment, on 13 March 2015 the Tribunal invited the applicant to appear before it to give evidence and present arguments. The applicant responded by saying that he wished the Tribunal to delay its decision until he had heard from the Ministerial Intervention Office concerning his application under s.417 of the Migration Act 1958 (Cth) (the Act). The Tribunal told the applicant that his case could not be considered under s.417 until the Tribunal had made its decision, and on that basis declined to delay making its decision. On 21 April 2015, the applicant informed the Tribunal by telephone that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review. The applicant confirmed this position by an email sent to the Tribunal on 21 April 2015 in which he reiterated that he was not coming to the hearing. He asked that the Tribunal make a recommendation in its decision regarding Ministerial intervention. 6 The Tribunal affirmed the decision under review. The Tribunal concluded that it was not satisfied that the applicant was owed protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and therefore the applicant did not satisfy the relevant criteria set out in the Act.

Proceedings before the FCCA 7 On 18 November 2015, the applicant commenced proceedings in the FCCA by filing an application to show cause (FCCA application). The FCCA application was filed 175 days outside the statutory time limit imposed by s.477(1) of the Act. On 25 May 2016, the primary judge made an order granting the applicant an extension of time. In the FCCA application, the applicant advanced two grounds. 8 On 2 September 2016, the primary judge dismissed the FCCA application on the basis that the Tribunal had not made a jurisdictional error. His Honour considered whether the Tribunal had failed to conduct a review in accordance with the principles set out in Minister for Immigration and Multicultural Affairs v Rajalingham [1997] FCA 719; 93 FCR 220, in particular having regard to the expression of the Tribunal's reasons at [28] of the decision record that it was "unable to establish the relevant facts". The primary judge's core reasoning is reflected in the following extracts from his reasons for judgment (emphasis in original): 24. In my view, the principles explained by the Full Court in Rajalingam have no application to the facts of this case. Importantly, the Tribunal says that it had insufficient information to establish the relevant facts. It did not say that it could not establish any facts. Thus, [26] of the Tribunal's reasons disclose that the Tribunal had sufficient evidence to establish whether or not it accepted that the applicant had supported the BNP in the past. However, what it considered relevant was not what had occurred in the past because it also accepted information to the effect that "merely being a BNP supporter" did not give rise to being harmed in any way in Bangladesh. Rather, what was important was what might occur in the future and in particular, whether the applicant is still a supporter of the BNP and might in the future wish to express that support if he were to return to Bangladesh. That was one of the relevant facts which the Tribunal was unable to establish because the applicant had not attended the hearing and so it was unable to ask the question which might give it the information it required. Critically, this passage reveals that the Tribunal was well aware that its task involved speculation about the future. 25 The same analysis is applicable to [27] of the Tribunal's reasons in which the Tribunal considered the applicant's claim to have converted to Christianity. Here, the Tribunal accepted that the applicant stated that he had not been baptised. The lack of evidence on this subject left the Tribunal wondering whether he had ever been a practising Christian, particularly in light of the applicant's own evidence to the Department "that he had not gone to a church for several years". The "relevant facts" then, concerned the current intentions of the applicant's family towards him as well as why it might not be reasonably practicable for the applicant to relocate in Bangladesh.

Appeal to this Court 9 On 7 October 2016, the applicant filed an application for extension of time. An appeal was required to have been filed by 23 September 2016: r 36.03 Federal Court Rules 2011 (the 2011 FCRs). Accompanying the application is an affidavit deposed by the applicant on 6 October 2016. The affidavit has numerous annexures, including a 15 page document which, although described as an "Affidavit for Grounds for Notice of Appeal: [Draft]", was in fact the applicant's submissions. The affidavit also contained a considerable amount of country information as well as other documents relating to the applicant's migration history.

Consideration and determination 10 The applicant represented himself, as he also did in the FCCA proceeding below. He relied upon the written submissions annexed to his affidavit dated 6 October 2016 and also provided oral submissions. In oral address, he submitted that the FCCA had not made a decision at all and that Judge Smith's judgment delivered on 2 September 2016 was simply a "temporary judgment". This submission must be rejected. As I pointed out to the applicant at the hearing, the primary judge made a formal order that his application be dismissed. There is nothing temporary about the judgment. 11 Secondly, I tried several times to have the applicant focus on why he claimed that the primary judge had erred but virtually all his oral submissions were directed to why he said the Tribunal was wrong in rejecting his visa application. The applicant's oral submissions added little, if anything, to what was set out in the annexures to his affidavit. 12 In considering whether an extension of time should be ordered, the factors that guide the Court in the exercise of its discretion are well settled. They include the length of delay, any explanation for the delay, any prejudice to the first respondent if an extension of time is granted, and the prospects of success of the appeal if an extension of time is granted (see Hunter Valley Developments v Cohen [1984] FCA 186; 3 FCR 344, 348-349 and BTM15 v Minister for Immigration and Border Protection [2016] FCA 888). 13 The Minister submitted that the 14 day delay in filing the appeal is not insignificant. I am satisfied with the applicant's explanation for the delay which, in summary, is as follows: (a) he is self-represented and in a severe financial situation; (b) he sought Ministerial intervention; and (c) he attempted to submit his appeal papers on 29 September 2016, but on 5 October 2016 he was advised by the Court that his document was in the wrong form requiring him to resubmit the appeal papers. 14 The Minister did not submit that he would suffer any prejudice if the applicant was granted an extension of time. 15 The primary hurdle confronting the applicant in his application for time to be extended is the weakness of his proposed grounds of appeal. Those grounds are as follows (without alteration): 1. Applicant must not get a death penalty because he did not attend the hearing with RRT. At [8] of FCC decision. 2. At [13] of FCC decision, RRT member was completely biases by intervention application and picked up applicant's tone of submission where applicant was in a fair intention that he does not need to meet protection criterion when he seeks intervention under unique and special circumstances. 3. FCC or RRT did not give any value to the fact, [66-75 of appeal book] applicant was involved with politics from 1998-2006 from university and local area. He became active in BNP politics from the year 2001 when BNP came to power. Whole submission was making this issue as main reason for migration and consequence of having sponsor for student visa from his maternal uncle. Applicant repeatedly advised obvious persecution (murder) if his party lost power where he started facing threats from caretaker government. FCC decision agreeing with the fact applicant's any future initiative might make any possible impact against above threats. It is manifestly unseasonable as described further below. 4. ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 43AA (3) (b) At [14] [7][26] RRT decision there is an inconsistency of statement at [14]. The member affirms that the applicant did not leave his family home. The applicant was not targeted or threatened by political opponent because he did not leave family home; as a result of the fact no one was informed that he was back from overseas. Applicant affirmed in his application "it is not possible for a person to hide for the entire life". Applicant raising this issue to FC because at [7] of FCC decision primary judgment misinterpreted applicants past history. Primary judgment misrepresented his claim against political opinion as "extortion by criminals". Applicant informed both delegate and member that he was unable to arrange his "membership certificate" from BNP party offices. At [10] of FCC decision. At [17] of FCC decision court disregarded the issue where he made numerous calls to his party office. 5. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 5 (1)(f)(h) At [10][12][7] RRT member used a wrong meaning of the phrase "couple of years" to devalue the claim of applicant. Applicant provided a chronology of occurrences to proof BNP means his party came to power in the year 2001 and remain up until the applicant left the country with fear and real risks of persecution. At [6 (c)] FCC decision acknowledge the issue. Applicant's university and locality is part of same city where applicant had a political establishment as an active supporter (member) of BNP from 2001-2006 in all over the city where he was also involved with Dhaka university friends from student politics circle. Applicant is not political minded, but he has given explanations why and how he got involved with politics must not be misinterpreted by any authority at [6 (a)] of FCC decision. Applicant never faced significant harm in his home country because BNP was in power from 2001- 2006 when he was actively involved with politics or maintained regular relation with political leaders and cadres. All political activities like meeting, processions and propaganda funded by the money collected by political cadres like us (our group of friends). Applicant established a hidden agenda (illegal weapons in politics) of cadre politics in that country and continuous persecution of everyone who was involved with the circle. Applicant provided indications about unreported political murders as part of internal political war as rated in media as "worst than a war torn country Afghanistan". Applicant respectfully affirms "third world politics" is something does not work with logic might create significant lack in understanding the situation. At [20] of FCC decision. 6. Applicant demonstrated full fact finding of his protections claims including hidden agenda not "criminal extortion" (well founded fear of getting harmed) at paragraphs 1, 2 and 3 of AFFIDAVIT FOR NOTICE OF APPEAL Applicant annexed [list of authorities] with this submission to support his claims. Applicant respectfully affirms none of the decision raised confusion about real risk or well founded fear of getting harmed. 7. At [22-24] of FCC decision is also biased by the idea that applicant's oral evidence was not sufficient enough to establish his claim about political opinion. Applicant repeatedly advised at [6 (a)(d)] FCC became failure to understand the idea that applicant's neighbours were reasonably assuming that applicant was carrying illegal weapons like all his other university friends in locality and in contacts. Applicant did submit some evidence to FCC to reduce the confusion. Application also raised similar issue during his first interview. As stated on ground 1of this application this case must be taking hidden agenda's into account to conclude it is not the question what will be applicant's future thinking, things will happen for the past events. 8. Finding full facts without compliant At [14] of FCC decision. RRT decision is acknowledge that full facts were not found before affirming the decision at [25]. RRT member unreasonably expecting repeat oral evidence or documents at [11][15][16][26][27]. Applicant affirms almost all facts of applicant's claim were established by material evidence and oral evidence in primary decision. RRT member was failure to weight the prescribed onus of proof in this very context of migration. The primary decision paper clearly established real risks of persecution or significant harm also confirms numerous people were killed during the period. It manifestly unreasonable not to accept his claim in this context by RRT because they were noticing that delegate rejected his claim with an assumption "criminal extortion" astray from the real and actual context of conventional reasons. Applicant is concerned that some links on his submission did not work properly but did not mention in any decision at [76-78 of appeal book]. Applicant is annexing reorganised all evidences specially hidden agenda in annexure-HAQ-2. 9. At [27] of RRT decision misinterpretation of applicant's evidence is significant. At [19] of FCC decision. Applicant's whole submission was written from a perspective that he was harassed and humiliated by his surrounding Muslim communities in Melbourne when he was studying. Applicant went to church and kept regular relation with church community in propaganda was the main reason for humiliation that confessed during the interview. Applicant left Melbourne for that reason and tried to establish in Sydney. The delegate of minister was insisting the applicant to confess that he did not go to any specific church after migrating to Sydney. Applicant only affirmed he could not go to church regular basis. In particle applicant was involved with a 24/7 job responsibilities from 2010-2013. Applicant is living on help from church community for past 2 years also enrolled to Baptism process at present. Applicant annexed statutory declaration to legally declare his religious belief which was sent to the minister for his consideration and RRT was informed about the issue. Applicant lives in this country for 10 years not as a practicing Christian but never had any need to provide any evidence to authorities before. Applicant has been avoiding all Muslim communities specifically harassments of people from previous country of residence for this whole 10 year period of time. Applicant given satisfactory reasons for hiding his religious belief from other. Applicant annexed his most recent step to establish him-self as practicing Christian to close the argument (Baptism). 10. Applicant lost his share of parent's property only because he changed his religious belief. Applicant is about to lose approximate $150K unpaid salary from his ex-employer in the same consequence [66-75] of appeal book. How else applicant can have a minimum trust from decision makers that he is a converted Christian. There is not such idea "nominal Muslim' in Muslim belief, the truth is applicant was nominally a Christian if decision maker wishes to affirm Baptism is the one and only way to convert into Christianity. 11. At paragraphs 2 and 3 of AFFIDAVIT FOR NOTICE OF APPEAL applicant affirms errors of law need to be amended by legal advice from legal aid for notice of appeal. Applicant also annexed [list of authorities] with this submission to support his claims. Applicant seeks to have his extension of time granted on grounds of application and further legal advice that he can finalise his notice of appeal and supporting affidavit. 12. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 5 (1)(E) Finding full fact without compliant before affirming decision. At most part of the decision. Applicant's oral evidence was significant to abolish all confusions. Applicant's substantive submission must not raise bad faith to the member to affirm only uncertainties at consideration. 13. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 5 (1)(f)(h) At [10][12][7] RRT member used a wrong meaning of the phrase "couple of years" to devalue the claim of applicant. It is manifestly unreasonable to reject any of my two claims relying on assumptions only or taking the most contradictory fact (does not exist in reality) as main reason for disregarding apparent facts about the real life context of his migration and consequences thereafter. 14. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 5 (1)(f)(h) RRT Member unreasonably expecting repeat oral evidence at [11][15][16][26][27] for both of his claims for protection. It is significant that member is allegedly disregarding all contexts of life threats. 15. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 5 (1)(a)(b) Applicant denied attending hearing with RRT because during his first interview applicant was insisted (implied) to confess few issues wrongly or remained silent. Member was contaminated by comprehended bias to delegate of minister. Prima facie value of applicant's claim about alleged life threats for two conventional reasons are significant where member had clear notice about the fact that primary decision only rejected claims with unreasonable assumption "Extortion by Criminals". He informed RRT he does not want to attend hearing to make his claims more complicated rather preferred to carry on with ministerial intervention. Everyone was intentionally misguiding the applicant. Applicant left the interview with clear assumption that everything happening because of DIBP involvement with his ex-employer. 16 The first ground does not identify any error by the primary judge. The Tribunal noted that the applicant chose not to give oral evidence and made clear its findings in relation to the applicant's claims on the basis of the evidence before it. 17 The second ground does not articulate any error by the primary judge, but suggests bias by the Tribunal. The applicant does not clearly explain his bias allegation. An allegation of actual bias must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [127]. Ordinarily, proof of actual bias must extend beyond the reasons for decision given by the decision−maker (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, at [38]). 18 In the third ground the applicant appears to assert that the Court below, and the Tribunal, did not 'give any value' to the applicant's involvement with politics from 1998−2006, and other claims. It was not the role of the Court below to consider claims made by the applicant regarding his asserted fear of harm in Bangladesh. There was no claim made below that the Tribunal failed to consider a claim, or part of a claim. In any event, the Tribunal considered the applicant's claims to fear harm for reasons, among others, of his political affiliations, and it gave clear reasons as to why it was not able to be satisfied of those claims. 19 In the fourth ground the applicant asserts that the Tribunal's decision contained an 'inconsistency of statement' at [14] of the decision record. In that paragraph the Tribunal records the applicant's evidence of his return travel to Bangladesh in 2009/2010 and the fact that he stayed at home and was not targeted or threatened by political opponents during the period. Contrary to the applicant's suggestion, the Tribunal did not in [14], reject the possibility of the applicant facing harm in the future because he was not threatened in 2009/2010. The Tribunal's consideration of the applicant's claims came later. The applicant further asserts that the Court below "misinterpreted applicants (sic) past history" by reference to [7] of the primary judge's reasons for judgment. At [7] of that judgment the primary judge simply provides a concise summary of the outcome of the applicant's visa application to the Department. The applicant further submits that the primary judge 'misrepresented his claim against political opinion as "extortion by criminals". It is not clear what the applicant means by this assertion. 20 The fourth ground also refers to s.43AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) which relates to the correction of errors in a Tribunal's statement of reasons. Section 43.AA of the AAT Act does not apply to proceedings in the Tribunal's migration division: see s.24Z(1) of the AAT Act. 21 In the fifth ground the applicant refers to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The ADJR Act does not apply in respect of privative clause decisions made under the Act: see s.3(da) of Sch 1 of the ADJR Act. The applicant acknowledged in oral address that the ADJR Act did not apply but he said that he relied upon the errors of law which are identified in that legislation. Even if that be accepted, the fifth ground raises matters of a factual nature which would require the Court to engage in impermissible merits review, which is not the function of this Court or the Court below. 22 The sixth ground does not articulate any error by the primary judge. It is unclear what the applicant intends to convey in this ground. 23 In the seventh ground the applicant asserts that the primary judge was biased, and that his Honour failed to understand certain factual matters concerning his claims. The applicant offers no support to substantiate this serious allegation. The ground appears to reflect no more than the applicant's dissatisfaction with the primary judge's decision. 24 In the eighth ground, the applicant again takes issue with the Tribunal's finding that it was not satisfied as to the applicant's claims. It was not unreasonable for the Tribunal to conclude that it was not so satisfied for reasons which the Tribunal set out in some detail. 25 In the ninth ground the applicant takes issue with the Tribunal's summary at [27] of the decision record of the applicant's claim to fear harm for reason of his conversion to Christianity. However, the ground itself makes assertions of a factual nature which are irrelevant to the determination of the issues on the application for an extension of time. In substance, the applicant again seeks a review of the merits of the Tribunal's decision. 26 The tenth ground does not articulate any error by the primary judge, but makes further assertions of a factual nature and issues in respect of the applicant's former employer. These issues are irrelevant to the determination of the issues on the application for an extension of time. 27 The eleventh ground does not articulate any error by the primary judge, but refers somewhat ambiguously to errors of law needing to be amended "by legal advice from legal aid for notice of appeal". The applicant did not make a formal application for the hearing in this Court to be adjourned. I indicated to him that I was unlikely to grant any such application in circumstances where he has known since at least 13 October 2016 that his application would be heard today. 28 The twelfth ground makes a further reference to the ADJR Act and fails to identify any error by the primary judge. The ground otherwise lacks clear meaning. 29 The thirteenth ground makes a further reference to the ADJR Act and does not articulate any error by the primary judge. The applicant complains that it was "manifestly unreasonable" for the Tribunal to reject his claims based on assumptions and disregarding "apparent facts about the real life context of his migration and consequences and thereafter". The Tribunal did not make assumptions about the applicant's claims. It was unable to be satisfied of the applicant's claims. There is no basis for any claim that the Tribunal's decision is not unreasonable in the legal sense as discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. 30 The fourteenth ground makes a further reference to the ADJR Act and fails to identify, any error by the primary judge. The applicant asserts that the Tribunal "unreasonably expecting repeat oral evidence". The Tribunal did not expect the applicant to repeat his evidence, but invited him to appear before it to give evidence in support of his claims as the Tribunal was unable on the information before it to make a decision favourable to the applicant. 31 The fifteenth ground makes a further reference to the ADJR Act and fails to identify any error by the primary judge. The applicant asserts that the Tribunal member was "contaminated by comprehended [sic] bias to delegate of minister''. The applicant asserts that he informed the Tribunal that he did not want to attend a hearing to make his claims more complicated. This may well have been the applicant's position, but there is no evidence that the applicant informed the Tribunal of this. The records of the Tribunal, which were in evidence in the Court below, and to which reference is made in the primary judge's reason for judgment, indicate that the applicant decided not to attend the Tribunal hearing for reasons associated with his desire to pursue a request for Ministerial intervention. The applicant further asserts that "Everyone was intentionally misguiding the applicant. Applicant left the interview with clear assumption that everything happening because of DIBP involvement with ex−employer". Such matters are not supported by any evidence, were not raised in the Court below, and their relevance to the determination of the application is unclear. 32 Finally, it should be noted that, in the draft notice of appeal, the applicant seeks an order pursuant to s.44 of the AAT Act. This is not an appeal under s.44 of the AAT Act. Section 44 of the AAT Act does not apply in relation to privative clause decisions (see s.43C of the AAT Act).

Conclusion 33 For these reasons, the application for an extension of time to appeal should be dismissed and the applicant must pay the Minister's costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.