EIL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 887 | Case summary

EIL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 887 | Case summary | Zoe

Background 3 On or about 21 April 2013, the appellant participated in an arrival entry interview (entry interview). A paper record of this interview is included in the Appeal Book as document 1.1 (pages 1-17). As discussed below, there is an issue as to the accuracy of parts of this record. In particular, there is an issue as to whether the following response has been accurately interpreted and recorded (at page 15): Q: did you use a passport or travel document for any part of this journey to Australia? I had a passport which my mother arranged for me - I gave this to the person and he looked at it and he said I had a valid visa for Indonesia - Q: who is the person? The one who was contacted on the Phone ... He then kept the passport - I never saw it again ... this was in Bangladesh - I gave it [to] him on the [date omitted] at [detail omitted]. 4 On 20 May 2016, the appellant applied for a protection visa. The appellant's claims for protection stem from his asserted connection with the Bangladeshi Nationalist Party (BNP) and a corresponding opposition to the Awami League. In brief summary, the appellant claimed to have been the victim of various crimes and indignities perpetrated by persons affiliated with the Awami League as a result of being identified as a supporter of the BNP. 5 On 7 June 2018, a delegate of the Minister (the Delegate) decided to refuse the appellant's application for the visa. 6 The appellant's application was referred to the IAA for merits review. 7 On 20 July 2018, the IAA affirmed the decision of the delegate. 8 On 27 June 2022, this Court quashed the decision of the IAA and made an order that the IAA exercise the relevant power again according to law: EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736. 9 After the decision of this Court, the IAA obtained updated country information and a written submission and various documents from the appellant. The IAA also conducted an interview with the appellant pursuant to the discretion in s 473DC(3) of the Migration Act 1958 (Cth). 10 On 12 October 2022, the IAA again decided to affirm the Delegate's decision (the IAA Decision). This is the relevant decision of the IAA for present purposes. The IAA provided reasons for its decision (the IAA Reasons). 11 The IAA summarised the appellant's protection claims at [27]-[28] of its reasons. It is sufficient for present purposes to note the following claims (as set out in the IAA Reasons at [28]): • The applicant has provided a Birth Certificate and Citizenship Certificate to support his claimed identity. He has no other identity documents and has never had a passport. • He was not able to obtain a National Identity Card (NIC). … • Politically the applicant supports the BNP but is not an active member. The opposing Awami League are in power in Bangladesh and he was harassed and mistreated by Awami League members in Bangladesh because of his support for the BNP. • The applicant worked with his father in the family business and took this over after his father's death in [details omitted]. Awami League members came to his father's shop and extorted money, damaged the shop, and physically assaulted the applicant. This happened on a number of occasions and although he reported this to the police they provided no assistance. • In an attack at the shop in 2010 he sustained injuries to his leg and required hospital treatment. • In March 2013 Awami League members attacked the family home; his mother was injured in this attack. • The applicant was concerned for his safety and decided to leave Bangladesh. … 12 The IAA set out its factual findings at [29]-[69] of the IAA Reasons. Relevantly for present purposes, the IAA stated: 38. I have considered the claim the applicant was prevented from obtaining a NIC or could not obtain one. I put to the applicant at the IAA interview that all adult citizens of Bangladesh can obtain a NIC and that his Birth Certificate, which is an extract of information from the Birth Register, attested to his citizenship and contained the requisite 17-digit Personal Identification Number. … 39. The information on this Certificate, as extracted from the Birth Register, clearly attests to his birth in Bangladesh; as such he is a citizen. His status as a citizen is reinforced by the 17-digit Personal Identification number. The country information indicates that with this information the applicant could apply for and obtain a NIC. … The applicant indicated a further problem was that the Awami League would not allow him to be provided a NIC. However, I note that when the applicant attained adulthood in [detail omitted] and was entitled to apply for a NIC the Awami League was not in power in Bangladesh which belies his assertion he could not obtain a NIC for this reason, at least at that time. When questioned why he did not obtain a NIC when the BNP was in power the applicant referred back to his comments about his father's background and simply stated that it was difficult. I do not find his account convincing. 40. I acknowledge that not all Bangladeshis obtain a NIC. Although the NIC is required to open bank accounts and for other reasons it is apparent it is possible to live in Bangladesh without a NIC. But I give weight to the country information and the documents the applicant has provided which indicate his ability to obtain a NIC had he wished to do so. I consider his claim he could not obtain a NIC on the bases he has advanced is undermined by the reliable country information before me and I find this damages the credibility of his account of the reasons for not having a NIC. I do not accept he was prevented from obtaining a NIC or could not obtain a NIC for the reasons he has given. 41. In his protection visa application and in the statutory declaration made on 26 October 2016 the applicant stated he did not have a passport and at the IAA interview he was asked if he had ever been issued with a passport and he responded that he had not. At the IAA interview the applicant was invited to comment on information recorded in the arrival entry interview report in which it is documented he stated that when he was leaving Bangladesh he had a passport which his mother arranged for him, that this passport contained a valid visa for Indonesia, and that the person arranging his travel took this passport from him. In response the applicant stated this was not true and that he did not say that at that interview. The applicant stated that when he was preparing his protection visa application his representative obtained a copy of the audio recording of that interview which he listened to and his contention is that the audio recording confirms his assertion he did not give that information about a passport. If true, this would be a significant discrepancy yet he did not mention this in his statement or application or in the statutory declaration he made on 26 October 2016 about his identity documents, even though his account is that he was aware of the matter around the time the protection visa application was completed. The applicant was asked why the written report of that arrival entry interview would include this information if he did not in fact say this and he restated his assertion he did not say this and made reference to being framed by the government and authorities and being detained for that. 42. I have listened to the audio recording of the arrival entry interview conducted on 21 April 2013. The recording is in two parts and in part one at 1 hour 59 minutes the interviewing officer asked the applicant if he used a passport or travel document for any part of his journey to Australia. His response as interpreted into English was as noted above and, apart from the applicant's assertions, I have no reason to doubt that this was an accurate interpretation of his response. Nor do I accept his explanation as to why this would have been recorded in the written record if he had not said it. I also note that although the applicant is speaking in Bengali in this interview, in his response to the interviewing officer's question he can be heard to clearly say the word 'passport' on several occasions. I do not accept the applicant's claim that the information in the arrival entry interview record stating he had a passport in Bangladesh in 2013 was not said by him. The information which I am satisfied he gave at the arrival entry interview indicates in 2013 he had a Bangladeshi passport containing a valid visa for Indonesia. 43. I find the applicant's account regarding his identity documents to be unsatisfactory; the country information does not support his claimed reasons for not being able to obtain a NIC and I note that he would have had the opportunity to obtain a NIC while the BNP was the ruling party in Bangladesh which belies his claim that he could not obtain a NIC because the Awami League did not allow him to. As a citizen, which he confirms he is, he could obtain a NIC. In summary, the applicant meets the requirements to be issued a NIC and I give weight to the information given at the arrival entry interview that he had a passport in 2013; this indicates he had a NIC. Considered overall I do not accept the applicant's claim he could not and did not obtain identity documents. (Footnote omitted; emphasis added.) 13 The IAA made findings regarding the appellant's claimed support for the BNP at [44]-[55]. Having noted a number of inconsistencies in the appellant's evidence, the IAA stated at [55]: Considered overall I do not accept the applicant supported or gave any support to the BNP or that he was perceived as being a BNP supporter. Nor do I accept that he has a genuine interest in the BNP or that he would support the BNP should he return to Bangladesh, or that he wishes to do so. 14 The IAA considered and made findings in relation to the appellant's claims that he was attacked by the Awami League. At [66] of the IAA Reasons, the IAA stated: My concerns about the plausibility of the claimed [2013] attack and that the medical evidence provided does not in fact support the claimed Awami League attack lead me to doubt the applicant was attacked or subject to extortion demands by the Awami League. Noting I have not accepted the BNP claims I am not satisfied his claims he was harmed by the Awami League are true. I do not accept the claims the Awami League came to his shop on multiple occasions and demanded money from him and physically attacked him or that they came to the family home in 2013 and attacked him and his family members. 15 The IAA considered whether the appellant had a well-founded fear of persecution at [71]-[85] of the IAA Reasons. The IAA concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act. The IAA also considered the complementary protection criteria at [86]-[91], concluding that these were not satisfied. 16 The appellant applied to the Federal Circuit Court for judicial review of the IAA Decision. Following an amendment to his application, the appellant relied on a single ground of review, which was as follows: The decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error, in that the IAA's decision contained a finding that was unreasonable or irrational because it lacked an intelligible justification. Particulars (a) The IAA concluded that the Applicant's expressed support for the Bangladesh Nationalist Party (BNP) was not genuine, and that the Applicant was not, had never been, and would not in future be a supporter of the BNP. (b) The information provided by the Applicant included details of his own support for the BNP, as well as a document from the BNP attesting to his connection to the organisation. (c) While it may have been open to the IAA to question the exact nature and degree of the Applicant's support for the BNP, there was insufficient material before the IAA to ground the conclusion that the Applicant had never supported the BNP, and that his claims of support for it were ingenuine. 17 On 22 May 2023, a hearing took place before the primary judge. The appellant was represented by counsel at that hearing. Consistently with the ground of review set out above, the appellant's submissions (as summarised in the reasons of the primary judge at [28]-[33]) focussed on the IAA's finding that the appellant had not supported the BNP. The appellant submitted in summary as follows (see the primary judge's reasons at [31]): At hearing, Counsel for the applicant submitted that while the above inconsistencies [in the appellant's evidence] might reasonably have caused the Authority to question the applicant's degree of support for the BNP, and consequentially, whether that support reached a threshold which might impact, bolster or diminish his protection claims, in the absence of evidence to contradict his claims the Authority could not reasonably or rationally have been satisfied that the applicant was not a BNP supporter at all. 18 On 12 December 2023, the primary judge decided that the application for judicial review should be dismissed and published reasons for judgment. 19 The primary judge set out the principles relating to unreasonable or irrational decisions at [34]-[36], referring to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) and BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [34], and other cases. 20 The primary judge stated that she was not satisfied that the appellant's ground was made out. The primary judge rejected the appellant's contention that his claims regarding his support of, and activity involving, the BNP did not escalate over time: at [39]. Her Honour's core reasoning is at [42]-[45]: 42 It can be accepted that a person may claim to "love" something and yet not actively pursue it. However, in the present case, the Authority's decision reveals its reasoning on the issue of the applicant's claimed BNP beliefs and/or involvement and that reasoning was logical, justifiable and rationally based on the material before it. 43 To the extent that it was contended for the applicant that he did not have any control about the description given by the secretary general in the support letter, assuming for the purposes of that argument that the letter was genuine, so much can be accepted. However, the applicant did submit that letter in support of his claims. As such, and unlike oral evidence given by a witness from whom the applicant might ask evidence be taken, the applicant was aware of the contents of the support letter and content to advance it in the terms in which it was written: Cf SZEWL v Minister for Immigration and Citizenship (2009) 174 FCR 498 at [44] to [45] per Rares J. 44 That the Authority decided differently than had the delegate on this point does not affect the conclusion at [42] above. It must be borne in mind that by the time the second Authority came to consider the issue, it had before it further information, including the benefit of being able to examine the arc of the applicant's developing claims from the time of the delegate's decision onwards, including at interview with the Authority. It is perhaps therefore unsurprising, but certainly not indicative of error, that the Authority concluded as it did. 45 The applicant has failed to establish the requisite level of unreasonable or irrational reasoning in the instant case. While the applicant may be dissatisfied with the Authority's conclusions, they were open to it and, at most, were ones upon which reasonable minds might differ based on the material and evidence available. (Emphasis added.) 21 The primary judge concluded at [46]: Accordingly, I accept the submissions of the first respondent that the Authority's decision was open to it for the reasons that it gave. The finding which rejected that the applicant had supported to the BNP, was perceived as being a BNP supporter, had a genuine interest in the BNP or that he would support the BNP on return to Bangladesh, did not lack an intelligible justification. The decision of the Authority was not unreasonable or irrational in that sense, or any other.

[4]

The appeal to this Court 22 On 13 December 2023, the appellant filed a notice of appeal in this Court. At that time, the appellant did not have legal representation. The notice of appeal contained two grounds. It is unnecessary to set these out, as they have been superseded. 23 Subsequently, pro bono representation for the appellant was arranged. I note that counsel appearing for the appellant in this Court is not the same counsel as appeared for the appellant before the primary judge. 24 On 10 June 2024, pursuant to an order made on 27 May 2024, the appellant filed a document headed "Amended Grounds of Appeal". This deleted the two grounds in the notice of appeal and substituted a single ground as follows: 1. The decision of the Immigration Assessment Authority (the Authority) is affected by jurisdictional error, in that: 1.1. the Authority's decision contained a finding that was unreasonable or irrational because it lacked an intelligible justification; and 1.2. further or alternatively, the Authority ignored relevant material in a way that affected the exercise of its power. Particulars (a) The Authority made adverse credibility findings against the Appellant relying upon part (but not all) of the information set out in the Appellant's Entry Interview, including limited words used in the interview in English. (b) The Authority relied upon its adverse credibility findings with respect to whether or not the Appellant had access to a passport to underpin further adverse credibility findings. (c) The Authority concluded that the Appellant's expressed support for the Bangladesh Nationalist Party (BNP) was not genuine, and that the Appellant was not, had never been, and would not in future be a supporter of the BNP. (d) The information provided by the Appellant included details of his own support for the BNP, as well as a document from the BNP attesting to his connection to the organisation. (e) While it may have been open to the Authority to question the exact nature and degree of the Appellant's support for the BNP, there was insufficient material before the Authority to ground the conclusion that the Appellant had never supported the BNP, and that his claims of support for it were ingenuine. 25 While paragraph 1.1 and particulars (c), (d) and (e) are substantially the same as the appellant's ground in the Federal Circuit Court, paragraph 1.2 and particulars (a) and (b) do not correspond to the ground of review relied on by the appellant in the Federal Circuit Court. 26 Paragraph 1.2 can be seen as a merely putting the appellant's contentions on a different legal basis and not amounting to a new point on appeal (insofar as it relies on particulars (c), (d) and (e)). 27 However, particulars (a) and (b), which relate to the way in which the IAA relied on the entry interview, raise a new point on appeal. If and to the extent that counsel for the appellant submitted that particulars (a) and (b) do not raise a new point, I do not accept that submission. The summary of the appellant's submissions contained in the primary judge's reasons at [28]-[33] does not contain any such argument. At the hearing of the appeal, the appellant's counsel did not point to any material that demonstrated that a similar contention had been advanced in the Federal Circuit Court. While the new ground ultimately attacks the IAA's finding that the appellant was not a BNP supporter (the same finding that was in issue before the primary judge), it does so on a substantively different legal and factual basis. 28 The appellant needs leave to rely on the new point: see WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10 (WGKS) at [13]. (This is the case even though the Amended Notice of Appeal was filed pursuant to a Court order.) The Minister opposes leave being granted to the appellant to rely on the new point. At the hearing, I indicated that I would hear argument on both: (a) whether the appellant should be granted leave to rely on the new point; and (b) the new point (should leave be granted). Both parties were content with this course.

[5]

Particulars (a) and (b) 29 I will first consider the question whether the appellant should be granted leave to rely on the new point raised by particulars (a) and (b) to the ground of appeal. 30 The applicable principles relating to leave to rely on a new point on appeal are well established. In WGKS, the Full Court stated: 18 The principle governing the Court's appellate jurisdiction is that appeals proceed by way of rehearing. Other than in the most exceptional of cases, parties are bound by the conduct of their case at trial, as Gibbs CJ, Wilson, Brennan and Dawson JJ explained in Coulton v Holcombe (1986) 162 CLR 1 at 7-8. … Ordinarily, the public interest in the finality of litigation would be undermined by allowing a new point to be argued on appeal that the party had not put below, and this is so even if it concerns only a question of law on uncontested facts that would not have changed the conduct of the trial. An appellate court will only permit such a new point to be raised if the interests of justice so require: Coulton 162 CLR at 8; O'Brien v Komesaroff (1982) 150 CLR 310 at 319 per Mason J with whom the rest of the Court agreed: see too Water Board v Moustakas (1988) 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan and Dawson JJ. … 20 Ordinarily, an explanation is required for the making of an amendment … on an appeal: Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 at 215 [103], 217 [111], [112] per Gummow, Hayne, Crennan, Kiefel and Bell JJ: Tamaya Resources Ltd (in Liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199 at 226 [153]-[159] per Gilmour, Perram and Beach JJ. The mere fact that new counsel has thought of a new point is insufficient. … Specifically in relation to migration cases, where an adverse decision may have various serious consequences for an appellant, the Court may grant leave to raise such a new point that was not taken below if the point clearly has merit and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. See, for example, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598 [48], CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at 372 [36] and Fualau v Minister for Home Affairs [2020] FCAFC 11 at [13]-[14]. (Emphasis added.) 31 In the present case, no explanation has been provided as to why the point that is sought to be argued now was not raised in the Federal Circuit Court. It may be inferred that it is a point that has occurred to the counsel who came into the case on appeal. 32 In determining whether leave to rely on the point should be granted, it is important to consider the merit or otherwise of the new point. I turn now to that issue. 33 In oral submissions, it was submitted on behalf of the appellant that the IAA has decisional freedom, but not if the decision lacks any evident justification or is outside the bounds of legal reasonableness. The appellant noted that the IAA stated (at [41] of its reasons) that there was a "significant discrepancy" between the evidence the appellant gave in his IAA interview (that he had never had a passport) and one part of the paper record of the appellant's entry interview (which records the appellant as saying that he had had a passport). The appellant noted that the IAA decision-maker listened to and relied on the audio recording of the entry interview (see the IAA Reasons at [42]), despite the entry interview having been conducted with the assistance of a Bengali interpreter and despite there being no suggestion that the IAA decision-maker understood Bengali. The appellant noted that the IAA placed weight on the use of the word "passport" during the interview (see the IAA Reasons at [42]), despite the matters referred to above. The appellant submitted that the paper record of the entry interview shows that the interpreter was experiencing some confusion about what the appellant was saying during the interview. The appellant submitted that there could be other explanations why the word "passport" was said during the entry interview, other than the inference drawn by the IAA at [42] of its reasons. The appellant submitted that it was unreasonable or irrational for the IAA to rely on the translation of the entry interview in these circumstances. 34 In the appellant's outline of submissions, the appellant makes the following submissions about the IAA's fact-finding and/or reasoning: (a) the IAA had regard to selective information contained in the entry interview, but did not reconcile that information with the preponderance of inconsistent information, namely: that the appellant said he did not use a passport to travel to Australia, which appears immediately above in the entry interview paper record; that the appellant said he did not have a national identity card (NIC) and the IAA found that an NIC was a necessary prerequisite to obtaining a passport; and the circumstances of the appellant's travel to and arrival in Indonesia were inconsistent with the need for a travel document or visa; (b) the IAA did not have regard to the interpreter's own apparent confusion over what was being said during parts of the entry interview; (c) the IAA listened to the audio recording of the entry interview, and found that: (i) except for the appellant's own assertions, there was no reason to doubt that the interpretation into English was an accurate interpretation of the appellant's response (at [42]); this was despite the matters set out immediately above; and (ii) the appellant used the English word "passport" on several occasions; despite the fact that the appellant was otherwise speaking in Bengali (which it can be inferred the IAA decision-maker did not), the IAA found this supported the written record of the entry interview that the appellant said he used a passport for part of his journey to Australia (at [42]). (d) the IAA did not have regard to the fact that use of a "passport containing a valid visa for Indonesia" was inconsistent with the appellant's asserted means of arrival into Indonesia; (e) the IAA, having found that the appellant used a passport for part of his travel to Australia, further found that the appellant must have had a NIC; (f) the IAA, having found that the appellant could have obtained a NIC (and did in fact have one prior to his departure from Bangladesh), drew further adverse inferences from the fact that the appellant did not vote in the 2007/2008 election, finding that failing to vote at those elections "significantly belies [the appellant's] claim he supports and loves the BNP" (at [51] and [54] of the IAA Reasons); (g) the IAA recorded that the appellant stated that he could not return to his village as it had become part of India, but did not accept that the village had become part of India; in so finding, the IAA overstated the assertions set out in the appellant's written statement of 22 July 2022; (h) the IAA, by failing to engage with all of the new information put forward by the appellant, misapprehended the appellant's asserted concerns and made further unfounded credibility findings; (i) the IAA appears to make adverse credibility findings against the appellant on the basis that: the appellant asserted his father came to Bangladesh as a refugee from India; and the IAA found that the appellant's father was in fact a Bangladesh citizen; this was notwithstanding that the appellant had stated, since the entry interview, that his father was a Bangladesh citizen; (j) the finding that the appellant's account of the 2013 attack at his home was "so implausible as to be far-fetched" (at [63] of the IAA Reasons) was unsupported by any further observations as to why. 35 The appellant submitted that, alone or in combination, the matters set out above lack intelligible justification, are unreasonable or irrational and therefore constitute jurisdictional error by the IAA, as it is described in SZMDS. Further or alternatively, the appellant submitted that the matters set out above, most particularly the inconsistencies in the entry interview, which cast considerable doubt on the appellant's having a passport, also demonstrate jurisdictional error by reason of ignoring relevant material in a way that affects the exercise of a power: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82]-[84]. 36 In my view, these submissions do not have any significant merit. The IAA decision-maker did not listen to the audio recording of the entry interview to determine the accuracy of the interpretation of the appellant's responses; rather, the IAA decision-maker listened to the audio recording to see whether the paper record of the entry interview accurately recorded the appellant's answers as interpreted during the interview. It was open to the IAA to state (as it did at [42]) that it had no reason to doubt that the relevant interpreted answer was an accurate interpretation of the appellant's response. The onus was on the appellant to demonstrate jurisdictional error. If the appellant wanted to make a case that the IAA fell into jurisdictional error by relying on an inaccurate interpretation of the entry interview, it was open to the appellant to have the audio recording re-interpreted. I appreciate that this may not have been feasible given the cost of doing so. However, in the absence of such material, it was open to the IAA to have regard to the interpreted answers. Further, to the extent that the IAA relied on the fact that the appellant used the English word "passport" during the entry interview, this supported the proposition that the appellant gave responses about this subject-matter. I do not consider that it was unreasonable, in the legal sense, for the IAA to refer to and rely on this. 37 I also do not consider there to be merit in the appellant's contention that the IAA failed to have regard to various materials supporting the appellant's claim that he did not have a passport. The IAA mentioned the matters on which the appellant relied (referred to at 34 and (d) above): IAA Reasons at [41], [67]. There is no reason to infer that the IAA overlooked those matters: see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47] per French, Sackville and Hely JJ. 38 Having regard to the above, the new point in particulars (a) and (b) of the appeal ground lacks sufficient merit to justify a grant of leave. It is therefore unnecessary to consider the question of prejudice. For these reasons, leave to rely on the new point in particulars (a) and (b) is refused.

EIL18 v Minister for Immigration, Citizenship and Multicultural Affairs

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Judgment (7 paragraphs)

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Legislation Cited (1)

Cases Cited (15)