EAK16 v Minister for Home Affairs

1. The appeal filed 1 May 2018 is dismissed.
2. The appellant is to pay the first respondent's costs, to be taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 The appellant is a citizen of Bangladesh. He arrived in Australia on 20 March 2013. On 20 June 2013, he applied for what was ultimately deemed to be a temporary protection (class XD) visa. On 3 March 2016, a delegate for the then Minister for Immigration refused to grant that visa. The appellant then applied to the Administrative Appeals Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the delegate's decision on 6 December 2016. He subsequently applied to the Federal Circuit Court for a judicial review of the Tribunal's decision. That application was dismissed on 12 April 2018 (see EAK16 v Minister for Immigration & Anor [2018] FCCA 949 (the primary reasons)). On 1 May 2018, the appellant filed his appeal in this Court. 2 The appellant's notice of appeal contained two grounds supported by particulars, as follows: 1. The Administrative Appeals Tribunal's decision affected by jurisdictional error. Particulars: The Administrative appeals tribunal failed to consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicant had fear of persecution in his own country of residence. 2. The Administrative Appeal Tribunal made findings without evidence. The Administrative Appeals Tribunal rejected the applicant's evidence before the Tribunal and failed to believe the applicant as a credible witness, such failure constituted a breach of s425 of the Migration Act 1958 (Cth). Particulars: The tribunal in her decision records and interview records failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence just only the applicant's inability to remember or recall various issues and the dates at the time of hearing. (Errors in original) 3 It can be seen that, while the second ground of appeal at least seems to allege error on the part of the primary judge, the first ground is confined to errors allegedly committed by the Tribunal. Since the appellant is self-represented and since this appeal is directed to the correction of error on the part of the primary judge (see Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 at [3]-[5] per Bromberg J), I will assume, in his favour, that his first ground of appeal is actually intended to identify errors on the part of the Tribunal that the primary judge failed erroneously to correct. 4 Among other things, the primary judge: found that the Tribunal had "examined, in a careful and considered manner, all of the evidence that was put before it by the [appellant]" (at [7] of the primary reasons); identified the inconsistencies and reasons provided by the Tribunal for not being satisfied of the appellant's claims and found no error in the reasoning of the Tribunal (at [7]-[9] of the primary reasons); and determined that the Tribunal had properly dealt with the other claims made by the appellant and that no jurisdictional error had been committed by it (at [10]-[18] of the primary reasons). 5 The appellant attended the hearing of this appeal in person where he was assisted by an interpreter. He had not filed any written submissions prior to the hearing as he had been ordered to do. When he was given the opportunity to make oral submissions in support of his appeal, he responded by requesting an adjournment. He claimed he was disabled and unfit and an adjournment would allow him time to seek pro bono legal representation and to produce additional evidence which he claimed he had not been able to produce during the hearings before the Tribunal, or the primary judge. The Minister opposed that application contending that there was no explanation as to how further evidence would assist the appellant's case. When asked what steps he had already taken to obtain legal assistance, the appellant said he had first attempted to engage counsel on a pro bono basis two weeks earlier. He said he had contacted barristers and "[a] few of them talked to me and asked me to wait". When asked why he had not taken any steps to obtain legal assistance before that time, he said he did not have any money and he was disabled. 6 Having regard to the lack of utility involved in providing "additional evidence" in this appeal and the vagueness of the appellant's responses on both these aspects, I was not satisfied there was any purpose in granting the appellant an adjournment. Accordingly, I rejected his application. 7 During the continuation of the hearing, the appellant confirmed that the interpreter had read the Minister's written submissions to him and he challenged the contention in them that "there will be no risk on my life if I return to Bangladesh". He also sought to challenge the Tribunal's finding that he was not a member of "Chhatra Shibir". Additionally, he said he did not prepare his notice of appeal and he was therefore unable to speak about its contents. Finally, he again requested "that, if you give me time, then I can bring more documents". 8 The Minister submitted that the first ground of appeal had no merit for three reasons. Firstly, because "[a] close analysis of the Tribunal decision clearly shows that the Tribunal was thorough and careful in its assessment of all of the claims promulgated by the [a]ppellant." Secondly, because the Tribunal did afford the appellant natural justice and "[n]o error is disclosed by reference to the procedure adopted by the Tribunal or by reference to its reasons for decision". Thirdly, because the Tribunal did consider the persecution factor and "[a] fair reading of the Tribunal's reasons for decision discloses the reasons (including the serious credibility concerns it had) as to why the Tribunal was unable to be satisfied about his claims for fearing persecution in his country of residence." 9 The Minister submitted that the assertions made in the second ground of appeal were "not factually correct and ought be rejected". Specifically, the Minister argued: … that the Tribunal identified a series of inconsistencies in the evidence which underpinned its credibility finding. Its factual findings are rationally based on matters which bear on the issue of credibility. Those findings were open on the evidence and are not readily capable of challenge on judicial review. Further, the Tribunal was under no obligation to uncritically accept any and all of the allegations made by the appellant ... It was for the [a]ppellant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite level of satisfaction … (Citations omitted) 10 To attempt to make allowance for the obvious difficulties the appellant had as a self-represented person in presenting his appeal, I closely scrutinised the reasons for judgment of the primary judge (particularly at [4]-[18]) by reference to the matters raised in the appellant's notice of appeal and proceeding on the assumption referred to in [3] above. Having completed that exercise, I am satisfied that the primary judge carefully considered the jurisdictional errors allegedly committed by the Tribunal and correctly found that it had made no such errors. I do not therefore consider the appellant has identified any relevant error in the primary judgment. That being so, his appeal must be dismissed. 11 Accordingly, I order that the appellant's appeal filed 1 May 2018 be dismissed and the appellant pay the first respondent's costs, to be taxed or agreed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.