FEDERAL COURT OF AUSTRALIA BXI16 v Minister for Immigration and Border Protection [2017] FCA 760 Appeal from: BXI16 v Minister for Immigration and Border Protection [2016] FCCA 3017 File number: NSD 2113 of 2016 Judge: O'CALLAGHAN J Date of judgment: 7 July 2017 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – where appellant claims procedures required by Migration Act 1958 (Cth) not followed – where appellant seeks to rely on grounds not relied upon before primary judge – leave required – appeal dismissed. Legislation: Migration Act 1958 (Cth), s 36(2)(a) and (aa) Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 O'Brien v Komesaroff (1982) 150 CLR 310 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 Date of hearing: 16 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr J Palte Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs Table of Corrections 10 July 2017 On cover page, citation for judgment appealed from amended ORDERS NSD 2113 of 2016 BETWEEN: BXI16 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: O'CALLAGHAN J DATE OF ORDER: 7 july 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'CALLAGHAN J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing the appellant's judicial review application. Background 2 The appellant is a citizen of Bangladesh who first arrived in Australia on 6 December 2012. He was issued with a bridging visa on 28 February 2013 before applying for a protection visa on 12 April 2013. The delegate refused that application on 30 September 2014, a decision of which the appellant sough review on 7 October 2014. On 22 June 2016 that application was dismissed by the Administrative Appeals Tribunal (Tribunal) and a judicial review application in respect of that decision was dismissed by the FCCA on 23 November 2016. The Tribunal proceeding 3 The Tribunal considered whether the appellant 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 appellant being removed from Australia, there is a real risk that he would suffer significant harm. 4 In summary, the appellant claimed to meet both sets of criteria on the basis that: (1) He was a supporter of the BNP and feared harm by the Awami League. The appellant's father and family were heavily involved in campaigning for the BNP in the 1991 election. The appellant was given certain responsibilities during the election and, as a result, supporters of the BNP and Awami League knew him to be a BNP supporter. When the Awami League won power in 1996, he and his family were harassed and threatened because of their involvement with the BNP. He also feared being arrested in Bangladesh on suspicion of being involved in the murder of an Awami League leader, which had occurred in his village. The Awami League was blaming and targeting BNP supporters, including the appellant's brothers, in connection with murder. (2) He and some of his brothers were perceived as being well-off in Bangladesh by reason of living and working abroad and he feared harm for that reason. (3) He was involved in a land dispute with a member of the Awami League, as a result of which he had been threatened and harassed. The police would not assist the appellant and he could not relocate because the Awami League was the ruling party in Bangladesh. (4) He and members of his family were involved in various legal matters in Bangladesh. First, his brother had commenced successful civil proceedings in relation to the land dispute. Secondly, there was a criminal case involving an individual who had been threatening and harassing his family. 5 The Tribunal held that the appellant had fabricated his material claims for the purpose of obtaining a protection visa. In rejecting the appellant's claims, the Tribunal made extensive adverse credibility findings, including that: (1) His claims in relation to being a supporter of the BNP were inconsistent and implausible: Tribunal's reasons at [21]-[33]. (a) In his entry interview, he had claimed to have experienced problems with the BNP, however, in his visa application he stated that this was incorrect as he was actually a supporter of the BNP. (b) In his interview with the first respondent's Department he raised a number of new claims in relation to his BNP involvement, including that he and his family had been harassed and tortured by the Awami League and that he and his family had been threatened, which caused them to flee to Oman on two occasions. The appellant claimed that he did not mention these incidents in his application because, variously, he could not remember them, he had a poor interpreter or he was too fearful or lacking in confidence to do so. The Tribunal noted that the appellant was assisted by a migration agent to complete the application and found it implausible that he would have mentioned the land dispute but not the BNP-related incidents. (c) It was implausible that the appellant would have been so heavily involved in campaigning for the BNP during the 1991 election because he was 14-years-old at the time. (d) The appellant had poor knowledge of the BNP principles and policies. (e) The timeline of threats and harassment by the Awami League that was provided in the appellant's visa application was inconsistent with the timeline provided in a statement produced at his departmental interview. (2) His claims concerning the land dispute were inconsistent, contradictory and implausible: Tribunal's reasons at [34]-[51]. He provided inconsistent accounts of who purchased the land. He initially claimed that he had purchased the land, then he claimed that two of his brothers had purchased the land, then he claimed that it had been purchased in his name and the name of one of his brothers. There were several inconsistencies and contradictions in the appellant's various accounts of the problems encountered by his family in relation to the land and the action they took in response to those problems. (3) The Tribunal had concerns as to the authenticity of certain documents provided by the appellant in support of his various claims: Tribunal's reasons at [52]-[63]. The Tribunal's findings with respect to the authenticity of the appellant's documents particularly undermined the appellant's claims with respect to the various court cases in which he claimed to be involved. (4) Finally, the Tribunal held that the appellant's claim to fear harm as a result of being perceived as wealthy was unsupported by any country information: Tribunal's reasons at [66]-[68]. The FCCA proceeding 6 The appellant sought judicial review of the Tribunal's decision in the FCCA. The appellant's grounds of review before the FCCA were as follows: 1. The AAT mistook and misconstrued the facts. In making decision, the Administrative Appeal Tribunal failed to take account relevant considerations and took into account irrelevant considerations. The AAT made decision on irrelevant facts and findings. 2. Particulars: Applicant claims that his claims fall within the scope of the Refugee Convention for reasons of his membership of particular social group as a returnee from western country and his imputed political opinion. The applicant said to the Tribunal that he was supporter of the BNP from the very beginning. 3. In the first Interview the Department mistook the facts and concluded that he was not supporter of the BNP. 4. The applicant claims that the Department mistook or misconstrued the facts. At the Tribunal hearing the applicant raised the issue and claimed that the information about his membership was misunderstood by the Department .. 5. As the applicant claimed in his protection Visa application that, in the beginning of 2010 he bought land. His purchased land was encroached and occupied forcibly by the neighbour with the help of Awami League party workers and leaders of that area. In the middle of the night they made small tin sheds and started to occupy them. 6. His brother complained to the Police station but the police did not do because there was pressure from the Awami League Party supporters over the authority They could not do anything. Applicant believes he has no genuine protection from the local authorities because in that area the police force are totally influenced by the police. The applicant believes that the Tribunal misconstrued the facts and did not understand that political environment and culture of Bangladesh. 7. The applicant claims he was denied natural justice and procedural fairness when he was forced to continue hearing. The Tribunal mistook the facts. Applicant's weakness to present evidence in sequence became a serious concern about the applicant's credibility. The Tribunal came on conclusion that he has not told the truth in relation to crucial aspects of his claim. The whole hearing was conducted to destabilise the credibility of the evidence. Applicant claims that whatever he has submitted to the Tribunal in support of his claim was true and correct in his belief The Tribunal decision is unreasonable when it came on the conclusion that all the documents came from Bangladesh are fraudulent and bogus and it cannot accepted as authentic documents for the applicant's claims. 8. The applicant claims that the AAT's finding of reasons are confused and test for persecution is not applied according to the rules of the Act and according to Complementary Protection Provisions under s.36(2)(aa) of the Act. 9. Particulars : The applicant's fears of Persecution falls within the scope of Complementary Protection provisions for reasons of his membership of a particular social group as returnee from Western Country and his imputed political opinion. He left Bangladesh because of fear of foreseeable harm. As stated earlier he could not live in Dhaka in 2012 or his village because of fear of harm from the person who occupied the land and threatened him to kill him. 10. The applicant claims that the AAT unduly adopted harsh approach in assessing the fear of harm. The AAT did not follow the Rules of real risk Test of Persecution and harm. The AAT failed to account all the circumstances of fear and harms in which the applicant lived in Bangladesh. The AAT failed to give real reasons for not applying Complementary Protection Criteria Under Paragraph 36 (2)(aa). (Errors in original.) 7 The appellant did not file written submissions in the FCCA and did not make oral submissions in support of his application for review. At the hearing, the appellant stated in reply that he thought that the hearing was unfair and had come on too quickly. With respect to the latter of these issues, the primary judge asked the appellant what he would have done with any additional time, but the appellant did not provide a response. 8 Dismissing the application, the primary judge held: (1) With respect to ground 1 (contained in paragraphs 1 to 6 of the appellant's grounds of review), the appellant was seeking impermissible merits review of the Tribunal's finding that he was not a supporter of the BNP: primary judge's reasons at [28]-[34]. The Tribunal's reasons were detailed and considered and the finding was open to it. To the extent that the appellant claimed that the Tribunal ignored relevant material, the appellant was unable to identify any material alleged to have been ignored by the Tribunal. Insofar as the appellant sought to impugn the delegate's finding that the appellant was not a supporter of the BNP, the FCCA lacks jurisdiction to review that finding. In any event, there was no error in the Tribunal's treatment of the appellant's evidence to the delegate. (2) With respect to ground 2 (contained in paragraph 7 of the appellant's grounds), the primary judge held that, absent further particulars, no jurisdictional error was disclosed by the appellant's claim that he was denied procedural fairness when he was "forced" to continue with the hearing before the Tribunal: primary judge's reasons at [35]-[36]. The primary judge noted that, on the material before the FCCA, there was nothing to suggest that the appellant sought an adjournment or in any way lacked capacity to participate in the hearing before the Tribunal: primary judge's reasons at [37]. With respect to the allegation of bias, the primary judge held that there was nothing on the face of the Tribunal's reasons to suggest that the Tribunal was affected by bias (noting that such an allegation must be "firmly established, distinctly made and clearly proved": citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507). The Tribunal's findings with respect to the appellant's credibility were open to it, as were its findings in respect of the authenticity of the appellant's supporting documents: primary judge's reasons at [39]. (3) With respect to ground 3 (contained in paragraphs 8 to 10 of the appellant's grounds), the primary judge held that this ground also sought impermissible merits review of the Tribunal's decision. The primary judge held that the Tribunal's reasons were detailed and cogent, that the Tribunal correctly identified and applied the test for complementary protection and that it was open to the Tribunal to rely on its findings of fact in the context of s 36(2)(a) in determining that the appellant also did not meet the s 36(2)(aa) criteria: primary judge's reasons at [41]-[42]. The appeal to this Court 9 In this Court, the appellant challenges the primary judge's decision on the following bases: 1. The Honourable Judge Driver of the Federal Circuit Court in his Judgement delivered on 23rd of November 2016 failed to discover the error of law and relief under the Judiciary Act. The Honourable Judge also failed to discover that the Administrative Appeals Tribunal only made a conventional decision of the applicant's application without any sound basis or evidence rather the protection visa application decision was made by the Tribunal only on hypothetical assumption in a conventional way instead of focusing to the factual issues leaving the decision with sufficient doubt. 2. The Administrative Tribunal Decision was affected by the recent High Court reported decision and ruling. 3. The Administrative Appeals Tribunal failed to follow appropriate procedures as required by the Migration Act in making its decision on 22 June 2016 in deciding the applicant's protection visa review application. The Tribunal failed to follow the procedures that were required by the Migration Act and Regulations while making decision of the applicant's review application. 10 The appellant did not file written submissions in this Court, nor did he make oral submissions in support of his appeal at the hearing on 16 May 2017. 11 The first respondent submitted that the three grounds relied upon by the appellant in this appeal were not raised before the primary judge. Consequently, the first respondent submitted, the appellant requires leave to rely on them in this Court. Without the appellant's grounds in this Court being particularised, it is difficult properly to assess whether this is so. To the extent that ground 3 adverts to procedural irregularity, it can be characterised as broadly similar to ground 2 of the appellant's grounds before the primary judge. In any event, leave would only be granted if it were expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310. That is, leave could be granted if a new ground "clearly has merit…and there is no real prejudice to the respondent in permitting it to be agitated": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48]. For the reasons that follow, the new grounds in this appeal (if indeed they are all new grounds) are entirely without merit. Consideration 12 The first ground claims, in essence, that the primary judge erred in failing to identify that the Tribunal's decision lacked any "basis or evidence". I accept the Minister's submission that the Tribunal's rejection of the appellant's claims turned on its adverse credibility findings and that the appellant has failed to identify any respect in which those findings were not open or were flawed on one or more of the bases discussed by the Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [38]. Even putting the appellant's case at its highest, the Tribunal's findings on credit were supported by detailed and cogent reasons and reveal no error of the kind that would be appellable to this Court. The appellant's general claims that the Tribunal's decision was "conventional", "based on hypothetical assumption" and/or failed to focus on the factual issues take the appellant's case no further; a close reading of the Tribunal's decision reveals no defect in its credibility reasoning. 13 The second ground adverts to a "recent High Court reported decision" without identifying that decision. I accept the first respondent's submission that this ground is meaningless in the absence of such a fundamental particular. 14 The third ground is similarly unparticularised and claims that the Tribunal failed to follow the "appropriate procedures as required by the Migration Act… and Regulations". The relevant procedures are not stated. Nevertheless, neither the notice of appeal nor the Tribunal's reasons point to appellable error in respect of the procedures adopted by the Tribunal. Relevantly, as the first respondent submitted: (1) the appellant was on notice that his credit would be in issue and he was invited to attend the hearing, which he did, and to comment on the dispositive issues under review; (2) the appellant was invited to comment on the authenticity of the documents that he provided in support of his application; and (3) there was no information before the Tribunal that might have enlivened its obligations under s 424A of the Act. 15 To the extent that the appellant seeks to reagitate the procedural fairness claims that he made before the FCCA, no error is disclosed by the primary judge's reasons at [35]-[36], [37] and [39]. Conclusion 16 For the reasons given above, the appeal will be dismissed. The appellant should pay the first respondent's costs, to be agreed or assessed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate: Dated: 7 July 2017