CLM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background 4 The appellant, a citizen of Bangladesh, arrived in Australia as an unauthorised maritime arrival in May 2013. 5 On 14 August 2013, he applied for a Protection (Class XA) (Subclass 866) visa. By a legislative amendment, this was converted into an application for the current protection visa. 6 On 4 May 2015, a delegate of the Minister refused to grant the visa sought. In general terms, the delegate was not satisfied the appellant had been a registered member of the Bangladesh National Party (BNP) or that he had a well-founded fear of persecution. 7 Although that decision was affirmed by the Refugee Review Tribunal (RRT), on 26 April 2016, the parties consented to an order in the FCC that a writ of certiorari issue to the RRT quashing its decision. The matter was subsequently remitted to the Tribunal and reheard. 8 On 30 May 2019, the Tribunal again affirmed the delegate's decision not to grant the appellant a protection visa.

The Tribunal's decision 9 Before the Tribunal, the appellant asserted that he had been a shop owner in his village in Bangladesh. He also claimed that he was a member of the BNP and that he attended party meetings, participated in political rallies during election campaigns and assisted BNP candidates during them. In essence, he alleged that he had held a youth leadership position or a position of prominence in the BNP in his area. 10 He claimed to fear harm from members of the Awami League (AL) on account of his political beliefs. The AL is the main political opponent of the BNP in Bangladesh. He further claimed that AL members visited his shop and sought to extort money from him or his uncle, with whom he owned the shop. He claimed that the alternatives to paying the money demanded were either joining the AL or being harmed and possibly killed. 11 He said he made two payments of protection money but refused to meet a third demand. He claimed that as a consequence of his refusal he was confronted at a restaurant by four AL members who beat him with their fists and a pole and who told him the beating was a consequence of his refusal to pay them money. 12 The appellant further claimed that his uncle made a complaint to the local police about the extortion and the attack on him but the police refused to get involved because it concerned the AL. 13 He claimed that he continued to receive threats to the effect that he would be killed if he did not join the AL or leave Bangladesh. 14 The Tribunal accepted that he was a member and supporter of the BNP, but concluded that he had no role or profile beyond that in the organisation. It concluded that he had embellished his claims as to the level of his notoriety and of his conduct. Its non-acceptance of his claims was supported by its conclusion that his evidence lacked credibility and that determination formed a substantial part of its reasons. 15 Of particular concern to the Tribunal was his inability at the initial interview with the delegate to enunciate the policies and objectives of the BNP, although he was subsequently able to do so at the Tribunal hearing. 16 There is no need for the purposes of this appeal to assay the Tribunal's lengthy reasons in detail. Nevertheless, it should be observed that it made numerous findings relating to the appellant's lack of credibility and, in doing so, highlighted significant inconsistencies and serious omissions in his evidence. 17 In the course of its reasoning, it made specific reference to a DFAT Country Information Report on Bangladesh dated 2 February 2018 (the DFAT Report), particularly its analysis of politically motivated violence in the country. It identified that the elections in Bangladesh in 2014 were the most violent in the country's history, however it also noted that in recent years the frequency and level of intra-party violence has outweighed that of inter-party violence. It observed, in that latter respect, that intra-party violence predominantly occurred between competing AL factions and that this view was consistent with an earlier DFAT Country Information Report and other country information. It is apparent that the Tribunal had regard to this information for the purposes of ascertaining whether there was a real chance of persecution were the appellant to be returned to Bangladesh. 18 As mentioned, it was not satisfied of the appellant's credibility and, therefore, of his claims regarding his position in the BNP. It therefore disbelieved his claims that AL supporters made ongoing threats to assassinate him and concluded that he had embellished his claims as to the extent of his involvement with the BNP. It further concluded that the AL supporters would not have any ongoing interest in him were he to return to Bangladesh. 19 For the purposes of the appeal, it is relevant to note that the Tribunal accorded "little weight" to a letter of support from the Kilcoy Pastoral Company, where the appellant had been employed, given its overall concerns as to his credibility. 20 Accordingly, the Tribunal rejected the application for a protection visa on both the Convention grounds and the complementary protection grounds.

Proceedings in the FCC 21 On 24 June 2019, the appellant filed an application for judicial review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). On 25 September 2019, an amended application for review was filed and it is that document which founded the submissions advanced to the Court below. The grounds included in that application concerned a failure to take into account relevant material or relying upon irrelevant material, denying the appellant procedural fairness, and failing to accord the appellant natural justice by reason of "an apprehension of bias". 22 In relation to the ground concerning the manner in which the Tribunal dealt with the material before it, the primary judge held that the Tribunal: (a) was entitled to find that violence between AL factions was the most common form of politically motivated violence in Bangladesh during the relevant period and that conclusion was supported by the DFAT Report; (b) did not fail to take into account that the January 2014 elections in Bangladesh were the most violent in the country's history. It expressly identified the evidence to that effect contained in the DFAT Report; (c) was entitled to conclude that there was an inconsistency between the appellant's claim as to his level of involvement in the BNP, on the one hand, and his knowledge and understanding of BNP policies and events surrounding encounters with the AL, on the other; and (d) committed no error in the manner in which it dealt with the letter from Kilcoy Pastoral Company given its conclusions as to the appellant's credibility. 23 The primary judge further rejected the appellant's claim that a delay of almost 20 months between the Tribunal hearing and the handing down of its decision justified a finding of jurisdictional error. That ground is not pursued on appeal. 24 The primary judge also concluded that no apprehension of bias in the Tribunal arose from it putting to the appellant its concern about his increased knowledge of the objectives and policies of the BNP since the delegate's interview. 25 As a consequence, the primary judge concluded that there was no jurisdictional error in the Tribunal's decision and the application was dismissed.

Appeal to this Court 26 The grounds of appeal to this Court substantially mirrored the grounds of review to the FCC and were as follows: 1. Jurisdictional Error on the part of the respondents in not adopting a fair process in making the decision, by ignoring relevant material and relying on irrelevant material by (a) considering that intra-party violence between AL Party factions was the most common form of violence but without identifying whether it was the most common form of politically motivated violence when the Appellant fled Bangladesh on 15th February 2013; (b) relying on intra-party violence being the most common form of politically motivated violence when that was due only to 'AL's complete control over state institutions in recent times' as at 2nd February 2018; (c) Ignoring that the 2014 national election was the most violent in Bangladesh history; (d) considering that the Appellant's partisan approach to the BNP by supporting them without regard to specific policies was indicative of his lack of standing or involvement in the BNP; and (e) failing to accord any weight to the letter from the Kilcoy Pastoral Company as it reflected upon the Appellant's credibility. 2. The Tribunal Member committed jurisdictional error by failing to accord the Appellant Natural Justice by reason, inter alia, of an apprehension of bias.

Inappropriate articulation of the appeal 27 The grounds of appeal as formulated do not appropriately articulate any appellable error by the primary judge. On their face, they simply ask this Court to detect jurisdictional error in the Tribunal's decision. Necessarily, in order to succeed on an appeal, the appellant is required to identify and then demonstrate error in the primary judge's decision. The formulation of words used by the self-represented appellant in this case fail to do this. 28 However that may be, it is not wholly inappropriate to read the grounds of appeal as asserting that the learned primary judge erred by failing to detect the jurisdictional errors identified in grounds one and two. This was the very proper approach adopted by the Minister in his written submissions, and the appeal is appropriately dealt with on that basis.

Ground one 29 By particular (a) of ground one, the appellant alleges that the Tribunal erred by taking into account that the intra-party violence between AL factions was the most common form of violence but did so without identifying whether it was the most common form of politically motivated violence when he fled Bangladesh on 15 February 2013. 30 The Tribunal's finding concerning the issue of politically motivated violence is found at para [77] of its reasons. There, it identifies that Bangladesh is and has been for many years prone to high levels of politically motivated violence and that such violence tends to peak during periods of political unrest including elections. It then went on to find that intra-party violence between AL factions to be the most common form of violence. None of those findings are inconsistent with the evidence from the DFAT Report and indeed they are supported by it. In the course of the hearing of the appeal, the applicant sought to contest the Tribunal's finding of fact in this respect, however he was unable to point to any evidence before the Tribunal which might have falsified it. 31 The appellant's real complaint in respect of this issue seems to be that the Tribunal ought to have considered the nature of political violence at the time when he left Bangladesh in 2013. However, as the primary judge correctly found, the Tribunal was entitled to take into account the information to which it referred for the purposes of assessing whether there was a real chance of persecution if the appellant returned to Bangladesh. It was appropriate to do that by reference to the most recent and up-to-date evaluation of the prevailing circumstances. That information was provided by the most recent DFAT Report and the Tribunal was entitled to consider that the report assessed the circumstances of the most common form of politically motivated violence and between whom it occurred when addressing whether that chance existed. 32 The Tribunal's consideration of the DFAT Report as to the nature and type of politically motivated violence in Bangladesh was appropriate and directed to the issues which it was required to determine. 33 By particular (b) of ground one, the appellant alleges that the Tribunal erred by relying upon intra-party violence being the most common form of politically motivated violence when that was due only to the AL's complete control over State institutions at around 2 February 2018. 34 The gravamen of the appellant's complaint in this respect is unclear. The Tribunal acknowledged that the DFAT Report identified that the intra-party violence between AL factions was the most common form of violence and that was largely due to that party's complete control over State institutions in recent times. The point in issue for the purposes of the decision was where the preponderance of politically motivated violence occurred and that was between the AL factions. That conclusion diminished the existence of a risk of harm to the appellant from AL supporters based upon his BNP connections. 35 It may be that, again, the appellant's concern relates to the temporal element of the Tribunal's findings. However, as mentioned, the Tribunal's obligation was to determine whether the appellant might be persecuted if he were to be returned to Bangladesh. There is no merit in this particular of ground one. 36 In the course of the appeal, the appellant wished to challenge the Tribunal's finding as to where the preponderance of politically motivated violence occurred, however the evidence in the DFAT Report clearly supported that finding and the appellant was unable to identify any contrary evidence. 37 Particular (c) of ground one asserts that the Tribunal committed a jurisdictional error by ignoring that the 2014 national election was the most violent in Bangladesh history. As the primary judge concluded, this complaint was misconceived as the Tribunal expressly made a finding to that effect (see paras [73] and [77] of the Tribunal's reasons). It is clear the Tribunal had regard to the violence emanating from that election process and there is no merit in this particular. After being directed to the evidence before the Tribunal, the appellant accepted that there was no error in the Tribunal's findings in this respect. 38 Particular (d) of ground one appears to allege error in the Tribunal's conclusion that it did not accept him as having any prominent position in the BNP consequent upon his inability to articulate its specific policies. In this respect, it had recited his claims as to his involvement in the BNP. It also identified the discussion which had occurred between the Minister's delegate and him in relation to his understanding of the BNP's political aspirations. As the delegate identified, the appellant was unable to explain the BNP's political ideology or to identify how it differed from the AL's. He was also unable to articulate the political goals and objectives of the BNP. Partially as a consequence of these matters, the Tribunal concluded that he had no role or profile beyond being a member and supporter of the BNP. That led to the finding, based on the DFAT Report, that he would not face a real chance of persecution due to his political opinions should he return to Bangladesh. 39 The above process was a fact finding one engaged in by the Tribunal. The appellant's challenge to it rises no higher than an attempt to seek merits review of it and is not permitted in an appeal such as the present. It can be added that the appellant was unable to identify any error in the Tribunal's fact finding and reasoning in relation to this issue and, indeed, he subsequently acknowledged the correctness of the conclusion reached. As the primary judge concluded, there was no merit in this ground either. 40 The gravamen of particular (e) of ground one is that the Tribunal erred by failing to accord any weight to a letter from the Kilcoy Pastoral Company to the extent it reflected upon his credibility. This ground is particularly unclear. The Tribunal did not place "no weight" upon that letter. It placed "little weight" upon it. Moreover, it was entitled to accord the letter and its contents the significance which it determined it warranted. It is often said that the weight of a particular fact in the decisional process is a matter for the decision-maker: Minister for Immigration, Multicultural and Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281 - 282. Again, no appellable error has been shown by this ground. 41 It might be also observed that the letter of support from the Kilcoy Pastoral Company lacked any real significance to the issues to be determined by the Tribunal. In the course of the hearing, the appellant acknowledged that the letter spoke of the fact of his employment but did not mention anything in relation to his credibility. It necessarily follows that any alleged error in the weight given to that letter could not be material.

Ground two 42 Ground two asserts the existence of jurisdictional error by failing to accord the appellant natural justice by reason of the Tribunal's apprehended bias. The unparticularised allegation affords no hint as to the circumstances relied upon by the appellant to justify either assertion. An allegation of this nature is serious and the authorities are clear that it must be firmly and distinctly made and clearly established: Minister for Immigration and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507. The mere fact that the Tribunal has made findings adverse to the appellant does not give rise to any inference of bias: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 [38]. 43 It might be assumed that the allegation of bias arises from an interaction between the Tribunal member and the appellant at the hearing; this being the nature of the submissions before the primary judge. The relevant passage in the transcript was as follows: INTERPRETER: I wish to request for the protection from this country, because I fear for my life. I cannot go back to my country of origin. MEMBER: Okay, I understand that that's what you claim. My concerns are not dissimilar from (indistinct) in terms of your credibility. You knew very little about the BNP when you were asked in the Departmental interview and you were very vague. I've listened to the Departmental interview. It looks to me like you've read up on it a little bit since then. The delegate also asked you quite persistently about your involvement and you never mentioned anything about being a leader of the youth wing and I might say that's not mentioned in your statutory declaration that was attached to your claim. (Emphasis added). 44 There is nothing in that exchange which suggests the Tribunal member had unequivocally made up her mind as to the issue of the appellant's involvement with the BNP. All that occurred was that the member had listened to the recording of the interview between the delegate and the appellant and had noted that in it he had been unable to articulate anything about the political philosophy of the BNP. The Tribunal member then indicated that since that occasion he had become more fully versed in the nature of the BNP's activities. She then articulated her suspicion he had made himself more informed on that topic. 45 As was determined by the learned primary judge, the Tribunal member had made it clear that she was putting to the appellant those matters which could constitute a reason or part of the reason for the Tribunal affirming the decision under review. This she was required to do pursuant to s 424AA(1) of the Act. Although the subsequent articulation of that duty appears out of sequence, there was nothing inherently wrong with the Tribunal putting its concerns to the appellant at any stage. 46 As was observed in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at 269 [19], the robust and forthright testing of claims and evidence by a Tribunal does not support a finding of apprehended bias. Here, the Tribunal was entitled to raise its doubts and concerns with respect to the appellant's claims and his evidence so as to afford him an opportunity to respond. There was nothing in that which was put to the appellant which suggested that it had made up its mind on that issue. These matters were raised in the course of the discussions between the appellant and the Tribunal about his evidence and it afforded him the opportunity to respond to the Tribunal's concerns. Far from constituting evidence of apprehended bias, the exchange discloses an attempt by the Tribunal to permit the appellant to allay the concerns which it had formed during the course of the hearing. It was the correct approach. 47 The appellant informed the Court in the course of the appeal that he was unaware of the nature of this ground of appeal and that a lawyer had told him to include it in the Notice of Appeal. He indicated that he did not wish to say anything in relation to it. 48 No appellable error exists in relation to ground two of the Notice of Appeal.

Conclusion 49 None of the grounds of appeal nor any of the particulars of those grounds give rise to any sustainable argument on which the appeal might be upheld. The grounds identify no jurisdictional error by the Tribunal and, ipso facto, it cannot be said that the primary judge erred in failing to detect any. Necessarily the appeal must be dismissed.

Costs 50 The Minister asks for an order that the appellant pay his costs in the sum of $4,000. That amount is significantly less than the sum of $7,241 which might be claimed in a short form bill for an appeal involving a migration decision that is dismissed after hearing: Federal Court Rules 2011 (Cth), Sch 3, Item 15. The amount of $4,000 is appropriate given that it is proportionate to the nature of the case, including its complexity, and the extent of the work required to be undertaken on the Minister's behalf: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 [18]. In the circumstances, the amount of costs should be that which is asked for by the Minister. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.