SZVLC v Minister for Immigration and Border Protection

The Tribunal proceeding 4 The Tribunal considered whether the applicant met the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), on the basis of being a refugee, or the criteria in s 36(2)(aa), on the basis of there being substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he would suffer significant harm. 5 The Tribunal rejected the applicant's claims in their entirety on the basis that the applicant was not a credible witness and that documents relied upon by him in support of his claims were not authentic. 6 In respect of credit, the Tribunal found the applicant to be "an unsatisfactory witness", that "[h]is answers to questions seeking specific details of his activities and experiences were frequently vague and rambling", that he tended to refer to the general political situation in Bangladesh rather than speak of his own situation and that his evidence was variously "internally inconsistent", "evasive and lacking in credible detail" and reflected "exaggerated or fabricated claims about having been the victim of political motivated violence": Tribunal's reasons at [14]-[15], [18], [28]-[29]. At [32], the Tribunal held: …the applicant's evidence was not believable. He did not provide a spontaneous and coherent account of the relevant events, as might reasonably be expected from a person who was recounting his actual experiences. As noted above, his evidence was hesitant, and appeared to have been made up as he went along. 7 In respect of the applicant's documents, the Tribunal held that two letters purportedly written by the applicant's colleagues in the Bangladesh Jatiyatabadi Olama Dal were lacking in significant detail (at [21]), were of implausible origin (at [22]-[23]) and were in certain respects inconsistent with the applicant's own evidence (at [24]). On the basis of these deficiencies and country information concerning the prevalence of document fraud in Bangladesh, the Tribunal held that the letters did "not provide independent corroboration of the applicant's account, nor … serve to overcome deficiencies in the applicant's account" (at [25]-[26]). 8 As a consequence of these findings, the Tribunal rejected the applicant's claims, including: (1) that he participated in a large political demonstration on 6 April 2013, which marked the start of his problems in Bangladesh: Tribunal's reasons at [15]-[16]; (2) that he had a leadership role within the Bangladesh Jatiyatabadi Olama Dal and was politically involved with that organisation: Tribunal's reasons at [17]-[19]; (3) that he had been targeted for harm or harmed by the Awami League: Tribunal's reasons at [27]-[29]; and (4) that there was a "false case" against him involving the death of an Awami League member, in respect of which he was wanted by law enforcement authorities: Tribunal's reasons at [30]-[33]. 9 The Tribunal was also not satisfied that the applicant had a well-founded fear of persecution, or that there was a real risk that he faced significant harm, by reason of his religion or religious views: Tribunal's reasons at [34].

The FCCA proceeding 10 The applicant sought judicial review of the Tribunal's decision in the FCCA. The applicant's grounds of review before the FCCA were as follow: 1. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral and other documental evidence in relation to my claim to be a refugee. 2. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving me the opportunity to submit my explanations for any adverse information that the tribunal may have. If I would be given the opportunity to explain that could have led to a difference decision by the tribunal. 3. The tribunal biased by the country information and considered my case on average without giving any weight on my claims and didn't look the matter individually. 4. The tribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was an apprehension of bias in the making of the purported decision. [Errors in original.] 11 The primary judge rejected each of the grounds relied upon. The primary judge considered that the first ground could "only be understood as an assertion that the Tribunal did not 'accept' … [the applicant's] claims, not that it did not 'consider' [them]…" and that the Tribunal's findings of fact, including its adverse credibility findings, were reasonably open to it and probative of the material before it: SZVLC v Minister for Immigration and Border Protection & Anor [2016] FCCA 3371 at [31]. With respect to the second ground, the primary judge held that, on the material before the FCCA, the Tribunal had discharged its obligations under Div 4 of Pt 7 of the Act: SZVLC v Minister for Immigration and Border Protection & Anor [2016] FCCA 3371 at [33]-[41]. With respect to the allegations of bias made in the third and fourth grounds, the primary judge observed that such allegations "must be … clearly made and distinctly proved": SZVLC v Minister for Immigration and Border Protection & Anor [2016] FCCA 3371 at [43]; citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. The primary judge held that there was no arguable case of bias simply because the Tribunal did not believe or accept the applicant's claims and that the Tribunal's regard to country information was within the proper exercise of its jurisdiction: SZVLC v Minister for Immigration and Border Protection & Anor [2016] FCCA 3371 at [42]-[46].

The applications in this Court 12 An application for leave to appeal must be filed within 14 days of the publication of the judgment or the making of the relevant orders: Federal Court Rules 2011 (Cth) (the Rules), r 35.13. The applicant filed his application for leave to appeal and an application for extension of time in this Court on 16 December 2016, 4 days after the expiration of the prescribed period. 13 The draft notice of appeal specifies the proposed grounds of appeal as follows: 1. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration of my oral evidence regarding my involvement with politics as an active member of Bangladesh Jatiyatabadi Olama Dal that is associated with Bangladesh Nationalist Party. It is an error of law [Ground 1] 2. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to verify my claims and documents and evidences that I submitted during the application process and failed to enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse materials. If I would be given the opportunity it could have led to a different decision by the Tribunal. It is an error of law [Ground 2] 3. The Tribunal denied the natural justice in determining my review application that the Tribunal biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such it vitiated the said purported decision. It is an error of law. [Ground 3] 4. The Tribunal totally ignored my genuine documents and evidences supplied by me in support of my claims. In fact the tribunal should have given the opportunity to me to comment on. It is an error of law. [Ground 4] [Errors in original.] 14 The application for an extension of time and leave to appeal states a further unparticularised grounds, being that: The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration of my oral evidence regarding the persecutions, humiliations and sufferings I experienced in Bangladesh. It is an error of law [Ground 5] 15 Although the applicant's grounds are framed as challenges to the decision of the Tribunal, for the applicant's benefit, each ground can be construed as a claim that the primary judge erred by not identifying (or accepting) the relevant error of the Tribunal contended for. 16 The applicant did not file any written submissions in support of the applications before this Court. When given an opportunity to make oral submissions at the hearing before me on 17 May 2017, the applicant stated that he was telling the truth and sought to challenge the Tribunal's adverse credibility findings. The applicant also challenged the Tribunal's finding that certain documents relied upon by the applicant were not authentic.

Extension of time 17 The Court has a general power to extend a time fixed by the Rules: r 1.39. At the hearing of these applications on 17 May 2017, the Court asked the applicant to provide a reason for the delay in filing, to inform the Court's decision as to whether the 14-day time limit should be extended. 18 Through an interpreter, the applicant stated: I was late in applying - four days late because I didn't know the time frame when I should be doing it. I thought it was between 28 days - within 28 days I had to file. Your Honour, I don't know much about the law. I didn't go to any lawyer, I couldn't go, and I am doing all things by myself for my case, and that is why this delay in filing in court. And that is why. I'm really sorry. My apologies. That is why. This is my humble request to the court. Please forgive me and accept my application. 19 The first respondent submitted that the relevant considerations for the Court in determining the application for an extension are the length of the delay, the reasons for the delay, any prejudice to the respondents and the merits of the proposed appeal. I accept that those are among the considerations relevant to exercise of the Court's unfettered discretion to grant an extension of time in the circumstances: see generally AZAEY v Minister For Immigration and Border Protection (2015) 238 FCR 341 at [10]. 20 The first respondent acknowledged, quite properly, that there would be no prejudice to the first respondent if the extension were granted, but submitted nonetheless that the applicant had provided an insufficient explanation for the delay and that the application for an extension should be refused. 21 The applicant is unrepresented and does not speak English. I accept that he may have had difficulty understanding the Court's processes. Given the small period delay and the lack of prejudice to the respondents, I may have been prepared to grant the extension of time sought, had the proposed appeal had any merit. For the reasons that follow, however, the application for an extension of time and the application for leave to appeal will be dismissed.

Application for leave to appeal 22 In order for the applicant to obtain leave to appeal, I must be satisfied that in all the circumstances, the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal and, assuming that the decision is wrong, that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9. 23 The first respondent submitted that the applicant's grounds were no more than "an invitation to this court to place to one side the decision of the primary judge and … to form its own view as to the adequacy of the tribunal's reasons". The first respondent also referred the Court to the recent decision of Flick J in SZVBT v Minister For Immigration and Border Protection [2017] FCA 355, where his Honour said: 9. The first Ground of Appeal does not identify any appellable error said to have been committed by the Federal Circuit Court. As expressed, it is but an invitation to this Court to place to one side the decision of the Federal Circuit Court and for this Court to form its own view as to the adequacy of the Tribunal's reasons for decision. 10. Such an approach is to be firmly rejected. To pursue such a course would be to impermissibly reduce the proceedings before the Federal Circuit Court to a "preliminary skirmish": Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. See also: Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136 at [72], (2007) 245 ALR 389 at 403 to 404 per Branson, Lindgren and Besanko JJ. 24 That statement of the limits of this Court's jurisdiction in the circumstances of this application is clearly correct and I accept that the applicant's grounds are substantially directed to the merits of the primary judge's decision. Nevertheless, I will consider each of the applicant's grounds in turn.

Ground 1 25 The applicant claims that the Tribunal erred by not taking into consideration his oral evidence concerning his political involvement with the Bangladesh Jatiyatabadi Olama Dal. This ground is similar to ground 1 before the primary judge. I agree with the primary judge's characterisation of that ground as being an assertion that the Tribunal did not accept the applicant's claims, not that the Tribunal did not consider them. With respect to the applicant's alleged involvement with the Bangladesh Jatiyatabadi Olama Dal specifically, the Tribunal clearly considered the applicant's oral evidence and response to questioning by the Tribunal at the hearing on 8 October 2014: Tribunal's reasons at [15], [18].

Ground 2 26 The applicant claims that the Tribunal erred by failing to "verify" his claims, documents and evidence and, denied him an opportunity to provide explanations for "alleged adverse materials". 27 To the extent that Ground 2 claims that the Tribunal was required to verify the applicant's material, the claim must be rejected. The Tribunal is not required uncritically to accept any and all allegations made by an applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2. Nor does the applicant claim that the Tribunal failed to inquire into readily ascertainable facts, in respect of which the Tribunal was under a duty to inquire: compare, for example, Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170. Having rejected the applicant's evidence as not credible, it was open to the Tribunal to find that the applicant's claims were not made out. 28 To the extent that Ground 2 claims that the applicant was denied the opportunity to respondent to matters going adversely to his credit, that too must be rejected. The adverse credibility issues arising from the applicant's oral and documentary evidence were squarely put to the applicant at the hearing before the Tribunal: Tribunal's reasons at [15], [22], [24]-[25], [28], [31]. The Tribunal simply found the applicant's responses to this line of questioning to be unsatisfactory.

Ground 3 29 This ground is an unparticularised claim that the applicant was denied procedural fairness, including because the Tribunal's decision was affected by bias. The applicant has not sought to put the transcript of the Tribunal hearing in evidence before this Court, nor did he seek to do so before the primary judge. In the absence of that transcript, the only record before this Court of the proceedings before the Tribunal is the Tribunal's reasons. Nothing in those reasons supports the applicant's bias claim or his claim that he was denied procedural fairness. I agree with the primary judge's finding that the Tribunal complied with Div 4 of Pt 7 of the Act, including by providing the applicant with a meaningful opportunity to make out his case.

Ground 4 30 The applicant also claims that the Tribunal erred when it "totally ignored" and/or failed to give the applicant an opportunity to comment on his "genuine documents and evidences". This claim is belied by the Tribunal's detailed consideration of his documentary evidence at [21]-[26] of its reasons (as set out at [7] above). In particular, the Tribunal asked the applicant to comment on: what it considered to be a material omission from one of the letters relied upon (at [21]); on how the same letter could have been created when its authors were, on the applicant's account, in hiding at the time (at [22]); and on why the second letter relied upon directly contradicted the applicant's own evidence (at [24]). Ground 4 is thus unsustainable.

Ground 5 31 Ground 5 is similar to, though broader than, Ground 1 and claims that the Tribunal erred by failing to take into consideration the applicant's oral evidence concerning "the persecutions, humiliations and sufferings [the applicant has] experienced in Bangladesh". As with Ground 1, Ground 5 is unsustainable on the material before this Court. 32 The Tribunal directly asked the applicant about the harm that he had suffered in Bangladesh (at [28]) and was unsatisfied by his responses to the Tribunal's questions, which the Tribunal found to be "generalised", "evasive, vague and inconsistent with his own… claims": Tribunal's reasons at [29]. 33 To the extent that this ground also adverts to the applicant's claim to be the subject of a "false case", it is clear the Tribunal provided the applicant with ample opportunity to give oral evidence in respect of the claim, including by asking "open questions about the relevant events" and asking follow-up questions to clarify the applicant's account: Tribunal's reasons at [31]. The applicant's answers to these questions were plainly taken into consideration by the Tribunal in reaching its conclusion that the applicant's evidence in this respect was not believable, spontaneous or coherent and was "hesitant, and appeared to have been made up as he went along": Tribunal's reasons at [32]. 34 Again, this ground is really a complaint about the Tribunal's refusal, on the basis of reasonably open adverse credibility findings, to accept the applicant's claims with respect to "the persecutions, humiliations and sufferings" that he allegedly suffered in Bangladesh. No appellable error arises from those findings.

Conclusion 35 For the reasons given above, the decision of the primary doubt is not attended by sufficient doubt to warrant its reconsideration on appeal. The applications for an extension of time and leave to appeal will be dismissed. The applicant should pay the first respondent's costs, to be agreed or assessed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.