DOL16 v Minister for Immigration and Border Protection

in the tribunal 8 The appellant lodged his application for review of the delegate's decision with the Tribunal on 24 February 2015. On 1 June 2016, the Tribunal invited the appellant, through his migration agent, to appear before it to give evidence and present arguments relating to the issues arising in his case. 9 The appellant appeared before the Tribunal on 23 August 2016. The Tribunal's reasons record that the hearing was conducted with the assistance of a Bengali interpreter. The appellant's migration agent was not present. 10 The Tribunal decided to affirm the decision of the delegate to refuse the grant of the protection visa. It found that it was not satisfied that the appellant was a person in respect of whom Australia has protection obligations and that the appellant therefore did not satisfy the criterion in either ss 36(2)(a) or 36(2)(aa) of the Act. The essential reason why the Tribunal was not satisfied that Australia owed protection obligations to the appellant was that it did not believe or accept most of his evidence or his claims. 11 In its Statement of Decision and Reasons, the Tribunal dealt separately with the appellant's claims concerning the property dispute and his political involvement. 12 The Tribunal stated that it had a number of "credibility concerns" about the appellant's claims concerning the property dispute. Those credibility concerns ultimately led the Tribunal to find that the appellant had not given truthful evidence in relation to the details of the family property dispute. It is unnecessary to refer at length to the Tribunal's reasons for rejecting much of the appellant's evidence about that issue. It is sufficient to say that the Tribunal gave essentially four reasons for its credibility concerns. The first reason was that the appellant had not made any claims concerning the property dispute in his entry interview. The other three reasons all concerned inconsistencies in the appellant's evidence concerning various aspects of his claims. The Tribunal ultimately concluded that it was not satisfied that there was any ongoing dispute between the appellant and his family concerning the family property, or that the appellant and his family had been attacked because of the dispute. 13 The Tribunal also had "credibility issues" with the appellant's claims and evidence concerning his fears arising from his membership of Jamaat-e-Islami. Those issues arose not only from inconsistencies in the appellant's evidence, but also from the lack of detail and unpersuasive manner in which the appellant gave evidence concerning his political involvement and events relating to it. It is again unnecessary to discuss the Tribunal's reasons for doubting the appellant's evidence concerning this aspect of his case. It is sufficient to note the following matters. 14 First, the Tribunal considered that the appellant's stance concerning the relative importance of his membership of Jamaat-e-Islami appeared to change during the course of his visa and review applications. In his entry interview, the appellant stated that he left Bangladesh because of his involvement with Jamaat-e-Islami. During the Tribunal hearing, however, the appellant initially said that his main fear of harm arose from the property dispute rather than his political involvement. Later, however, he indicated that his involvement in Jamaat-e-Islami was a "key reason" he feared harm. 15 Second, the Tribunal found that the appellant was able to give very little detail concerning the policies and beliefs of Jamaat-e-Islami. Similarly, while the appellant gave evidence concerning his involvement in various protests and demonstrations, he was unable to provide any meaningful details concerning those protests or demonstrations. The Tribunal said that it formed the impression from the way the appellant gave evidence concerning those events that he was "concocting a story as he went along" (Reasons at [63]). 16 Third, the Tribunal noted that in his entry interview the appellant had ticked a box which indicated that neither he, nor any of his family members, had been involved in any activities or protests against the government. Following the hearing the Tribunal wrote to the appellant and invited him to comment on the fact that he had provided this answer in his entry interview. The Tribunal advised the appellant that it considered that this response was inconsistent with evidence he gave at the hearing. The appellant responded to the invitation and stated that he gave this response in the entry interview because he was scared to admit his involvement with politics in Bangladesh. The Tribunal rejected that explanation because, amongst other things, it was inconsistent with the fact that the appellant had said in the entry interview that he was a member of Jamaat-e-Islami. 17 Ultimately the Tribunal concluded that the appellant had been untruthful in relation to his claims about his political involvement and did not accept that he had ever participated in political protests and demonstrations. The Tribunal accepted that the appellant had a "loose, low level and limited connection with Jamaat-e-Islami in his village" (Reasons at [66]). It also accepted that active members in Jamaat-e-Islami are at risk of harm from the Awami League and government authorities. The Tribunal found, however, that the appellant's past political involvement had not been such that he faced a real chance of serious or significant harm if he returned to Bangladesh. The Tribunal was also not satisfied that the appellant had a subjective fear of harm based on his membership of Jamaat-e-Islami. 18 Having effectively rejected each of the key elements of the appellant's claims, the Tribunal found that the appellant did not have a well-founded fear of persecution for any "Convention reason", and did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh, there was a real risk that he would suffer significant harm for any of the reasons claimed. The Tribunal was accordingly not satisfied that the appellant was a person to whom Australia had protection obligations and therefore found that he did not meet the criteria for the grant of a protection visa in ss 36(2)(a) or 36(2)(aa) of the Act.

in the circuit court 19 The appellant filed an application for judicial review of the Tribunal's decision in the Circuit Court on 23 November 2016. That application contained the following six grounds (as drafted): 1. In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations. 2. The tribunal failed to assess harm based on my claims. 3. The tribunal failed to assess the present situation in Bangladesh since I left. 4. The tribunal decision effected by the natural justice. 5. The tribunal made decision without any verification of my genuine documentary evidence and statement. 6. The Tribunal decision is identical or similar of the Departmental decision. Particulars: AAT unreasonably raised doubt over my claims for political opinion. The Department and the Tribunal misunderstood or misconstrued the facts which was effect the decision. And for the safety of my life I forced to leave Bangladesh by boat. When it became worse, I decided to leave Bangladesh. I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidence. The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared after arrived by boat in Australia. Sometimes I was nervous and confused at the time of interview with the Department & the tribunal. I did not understand interpreter properly. For the protection of my life and I became serious target by the Police, Awami League gang and there activist. The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I will provide more details in my Amended Application. I believe I was denied procedural fairness when the hearing was conducted not freely and fairly. 20 The appellant's application was heard by the primary judge on 16 August 2018. The primary judge noted that the appellant appeared unrepresented at the hearing but had the assistance of an interpreter. The appellant did not file any amended application, evidence or written submissions. The appellant did, however, make oral submissions at the hearing. 21 It is clear from the primary judge's judgment that the appellant's principal, if not only, submission was that the Tribunal had failed to consider his safety if he was returned to Bangladesh. Her Honour observed that, beyond the appellant's submission that the Tribunal had failed to consider his safety, "each of the grounds [in the appellant's application] makes a bare assertion unsupported by particulars or oral or written submissions" (Judgment at [10]). 22 The primary judge noted that the Tribunal had comprehensively rejected the appellant's claims based on adverse credibility findings (Judgment at [28]). Her Honour found that the Tribunal's findings, including its adverse credibility findings, were open to it on the evidence and material before it for the reasons it gave. The primary judge did not consider that the Tribunal's findings were tainted by any failure to afford procedural fairness, illogicality or unreasonableness (Judgment at [29]). Her Honour also noted that there was nothing on the face of the decision to suggest that there was any denial of procedural fairness (Judgment at [31]). 23 The primary judge gave detailed consideration to the appellant's submission that the Tribunal failed to consider his safety of the Tribunal's decision. Her Honour found that this submission was "not sustainable" (Judgment at [32], [33]-[38]). 24 In relation to the appellant's complaint in ground six that the Tribunal's decision was identical or similar to the delegate's decision, the primary judge noted that the applicant did not make any submissions in support of that contention, other than to reiterate his complaint that the Tribunal had failed to consider his safety. The primary judge found that on a fair reading of the Tribunal's decision it was clear that its findings were not dependent on those of the delegate and that it had independently and carefully considered the appellant's claims (Judgment at [39]-[41]). 25 The primary judge concluded that the appellant's grounds did not identify any jurisdictional error on the part of the Tribunal and instead appeared to be a mere disagreement with its findings and conclusions (Judgment at [42]). The primary judge dismissed the application with costs.

Appeal grounds and submissions 26 On 3 September 2018, the appellant filed a notice of appeal in this Court. His notice of appeal contains four grounds as follows (as drafted): 1. The Administrative Appeals Tribunal erred in its judgment not consideration applicant's evidence about persecution at the hands of Government of Bangladesh and family members in Bangladesh. 2. The Administrative Appeals Tribunal denied the applicant procedural fairness that the applicant evidence of land ownership and subsequent family conflict leads to persecution not been considered. 3. The Administrative Appeals Tribunal in its judgment did not consider fear for life of applicant if return to Bangladesh at the hands of current Government of Awami League. 4. The Hon. Federal Circuit Court Jude made legal error that the country information not been provided to the applicant which has adverse impact on applicant claim. . 27 As can be seen, grounds one to three relate to the decision of the Tribunal and generally reflect the grounds raised in the Circuit Court. Ground four is addressed to a purported error in the Circuit Court decision, though the error appears to relate to the Tribunal's failure to provide supposedly adverse "country information" to the appellant. That was not an argument that was raised in the Circuit Court and therefore can only be raised on appeal with the leave of the Court. 28 The appellant did not file any written submissions in support of his appeal. He was invited to and made oral submissions at the hearing. It would, however, be fair to say that those submissions were not directed to any of the grounds of appeal and did not in any way advance the appellant's case. They amounted to little more than a reiteration of the appellant's claim that he feared that he would be harmed if he was returned to Bangladesh.

MERITS OF THE APPEAL 29 There is no merit in any of the appellant's grounds of appeal. 30 As for ground one, there is no basis for the appellant's contention that the Tribunal did not consider his evidence about persecution. As the primary judge effectively found, the Tribunal plainly considered all of the appellant's evidence - it just did not accept it. It was open to the Tribunal to reject the appellant's evidence on credibility grounds for the reasons it gave. The appellant did not articulate any reason why the Tribunal's findings in that regard were not open, or why it should be concluded that the Tribunal's findings were in any way illogical, irrational or unreasonable. The fact that the Tribunal rejected the appellant's evidence does not mean that it failed to consider it. 31 As for ground two, there was and is no basis for the appellant's contention that the Tribunal denied him procedural fairness. The appellant failed to articulate any basis for this contention either in the court below or on appeal. 32 As for ground three, there is again no basis for the appellant's assertion that the Tribunal did not consider his claim that he feared for his life if he returned to Bangladesh, or that he would be harmed by anyone associated with the current Awami League government. A fair reading of the Tribunal's reasons reveal that it considered that claim but rejected it. 33 As for ground four, there are a number of fundamental difficulties with the appellant's claim that the primary judge erred in failing to find that the Tribunal had not given him adverse country information that it was required to give him. 34 First, as already noted, this does not appear to have been an argument that was raised before the primary judge. In those circumstances, the appellant can only raise it on appeal with the Court's leave. The appellant did not put forward any reasons why leave should be granted. He did not explain why he did not advance this argument in the Circuit Court. Nor, indeed, did he advance any submissions in support of this ground. Ordinarily leave to raise a new argument would only be granted if the new argument had some apparent merit, or was at least arguable. That is not the case here. 35 Second, and more fundamentally, the new argument is in any event entirely unmeritorious. 36 It may be accepted that the Tribunal had some regard to what was said to be "independent information" contained in a "DFAT [Department of Foreign Affairs and Trade] Country Report" in relation to Bangladesh (Reasons at [20]). It is difficult, however, to see how that information could fairly be characterised as adverse to the appellant's case. Indeed, on one view if it, the information was favourable to the appellant's case because it led the Tribunal to accept that "active members in Jamaat-e-Islami, particularly those involved in protests, are at risk of harm from the Awami League and government authorities" (Reasons at [67]). The problem for the appellant in the Tribunal was that the Tribunal rejected that he was either an active member of Jamaat-e-Islami, or that he had been involved in protests (Reasons at [66] and [68]). 37 Perhaps even more significantly, even if the so-called country information was adverse information, the Tribunal was in any event not obliged to disclose it to the appellant. That is because it was plainly information which was "not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member" and therefore fell within the terms of s 424A(3)(a) of the Act. Section 424A(3)(a) provides that such information is not subject to the disclosure obligation in s 424A of the Act. The appellant did not identify any other basis upon which it could be said that the Tribunal was obliged to disclose the relevant country information to him, or why, particularly given the operation of s 422B of the Act, the failure to disclose it would amount to a jurisdictional error.

CONCLUSION AND DISPOSITION 38 The appellant has failed to demonstrate any error on the part of the Circuit Court or any jurisdictional error on the part of the Tribunal. His appeal must be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.