Federal Court of Australia SZJDS v Minister for Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1272 Appeal from: SZJDS v Minister for Immigration [2019] FCCA 3625 File number(s): NSD 2 of 2020 Judgment of: BURLEY J Date of judgment: 28 October 2022 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) to affirm the decision of a delegate of the Minister to refuse to grant the appellant a protection visa – whether Tribunal made a jurisdictional error in failing to consider ministerial direction – where invalid certificate issued under s 438 of the Migration Act 1958 (Cth) – whether fact finding legally unreasonable – whether apprehended bias present – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2), 417, 424A, 438, 476 and 499 Cases cited: BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 SZJDS v Minister for Immigration [2019] FCCA 3625 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 34 Date of hearing: Determined on the papers Counsel for the Appellant: The appellant was self-represented Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 2 of 2020 BETWEEN: SZJDS Appellant AND: MINISTER FOR CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: BURLEY J DATE OF ORDER: 28 OCTOBER 2022 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 BACKGROUND [6] 3 THE APPEAL [11] 3.1 Ground (1) – failure to follow guidelines [11] 3.2 Ground (2) – invalid certificate [15] 3.3 Ground (3) – failure to disclose certificate [22] 3.4 Ground (4) – unreasonable fact finding [24] 3.5 Ground (5) – apprehension of bias [31] 4 DISPOSITION [34] BURLEY J: 1. INTRODUCTION 1 The appellant is a citizen of Bangladesh who came to Australia in 2005 on a domestic worker (subclass 426) visa. On 30 September 2005, he applied for a protection visa, claiming that he was a person in respect of whom Australia owes protection obligations pursuant to s 36(2) of the Migration Act 1958 (Cth). That application was refused by a delegate of the first respondent (Minister) and on review by the Refugee Review Tribunal (RRT), however the delegate's decision was set aside by consent by the Federal Magistrates Court. A differently constituted RRT subsequently affirmed the delegate's decision. On 14 April 2014, the appellant then made a fresh protection visa application on the basis that he sought to satisfy the requirements of s 36(2)(aa) of the Act, which had been recently introduced by amendment to the Act made in 2014. 2 On 2 December 2014, a delegate of the Minister refused the application. The appellant then applied to the Administrative Appeals Tribunal for a review of the decision of the delegate. On 9 July 2016, the Tribunal affirmed the decision under review. 3 The appellant then filed an application pursuant to s 476 of the Act seeking review of the decision of the Tribunal by the Federal Circuit Court of Australia (FCCA) (as that court was then known). A judge of that court dismissed his application: SZJDS v Minister for Immigration [2019] FCCA 3625 (J). 4 The appellant now appeals from the decision of the FCCA on the following grounds (particulars omitted): (1) The primary judge failed to hold that the Tribunal made a jurisdictional error by failing to comply with ss 424A or 499 of the Act. (2) The primary judge failed to hold that the Tribunal's decision is vitiated by reason of the Tribunal having proceeded on an invalid certificate. (3) In addition, and/or alternatively to Ground (2), the primary judge failed to hold that the Tribunal committed a breach of procedure. (4) The primary judge failed to hold that the Tribunal's decision is vitiated by fact-finding that is objectively unreasonable. (5) The primary judge erred in holding the Tribunal in a way to lead to the apprehension of bias (as written). 5 The appellant was self-represented. He filed written submissions in support of his appeal, and asked that the proceedings be determined on the papers. The respondent, who was represented by Mr Johnson of counsel, filed written submissions in response and consented to that course. 2. BACKGROUND 6 The appellant broadly claimed to fear persecution from the Bangladesh Nationalist Party (BNP) and Jamaat-e-Islami (JI) activists as a result of his membership of Awami League and involvement in an incident in 1997 when a BNP activist was killed. 7 In a statement made on 29 September 2005 in support of his first visa application, the appellant claimed that: (1) He commenced working as a cook in a hotel when he was 16 years old. (2) He became a member of a workers' union related to the Awami League in 1992 and became very active in party activities, organising meetings, demonstrations and membership. In 1993 he became a member of the Mirsarai branch of the Sramik League, a federation of unions, and in 1997 was appointed the branch's organising secretary. (3) Since 1995 he has experienced physical violence as a result of his political affiliations. (4) In August 1996 he was verbally and physically assaulted when he was on his way home. (5) On 27 September 1997, the union called a strike in a mill and stopped work. Clashes broke out and he was injured. One BNP activist, opposing the strike, was injured and later died in hospital. The management of the mill filed a false murder case against the appellant and 11 others, although none were involved in the death. An arrest warrant was issued and the appellant went into hiding. His political opponents were trying to take revenge for the killing and he considered that his life was at risk. A friend made an arrangement for him to go to the United Arab Emirates (UAE), and, because the Awami League was in power, he was able to obtain a visa and leave Bangladesh. (6) He left Bangladesh on 21 June 1998 because he did not feel secure. (7) He then worked as a domestic worker in Dubai. In 2003 he returned to Bangladesh to visit his father, who was dying. He was in fear of his life and stayed at a relative's house. The owner of the mill learnt of his presence, and alerted the police, who came and searched for him, and assaulted his family members because they did not find him. He returned to the UAE. (8) His employer in Abu Dhabi got a position at the UAE embassy in Australia and offered the appellant a position as cook at his residence, which he took in February 2005. He was never paid any wages for his work, and so he applied for a protection visa in Australia, rather than return to Bangladesh, where he fears that his life will be at risk. (9) He has been warned by his family and friends not to return to Bangladesh because he will be targeted as part of a government crackdown and by activists in the BNP and JI. 8 In recording the history of the proceedings, the primary judge noted that the appellant has made two applications for a protection visa, been interviewed and attending hearings before the RRT and the Tribunal on a number of occasions, and has made a request for the Minister for intervention in his case pursuant to s 417 of the Act. The primary judge notes at J[7] that the Tribunal found that there had been a "very significant change" in the appellant's claims between his first and current applications. 9 The primary judge accepted as accurate the submissions made by the Minister going to the Tribunal's reasoning and findings adverse to the appellant. In short, the Tribunal found that the appellant had given changing accounts of past harm and inconsistent evidence. The Tribunal did not accept that the appellant had the claimed problems as a result of his involvement in the union, including his claims to have been involved in an incident where a BNP activist was killed. The Tribunal found that the appellant had exaggerated his claims of past harm in Bangladesh, and gave reasons for that finding. It concluded that the appellant was never of any interest to the authorities. It noted that at the hearing, the appellant had confirmed that he was no longer involved with the Awami League. The Tribunal did not consider that he would be involved in similar organisations if he were to return to Bangladesh. Furthermore, it considered Department of Foreign Affairs and Trade (DFAT) Country Information, which noted that the Awami League was then in power, and that there was not a real risk that the appellant would suffer significant harm if he returned to Bangladesh. 10 All of the grounds of appeal save for ground (1) were raised by the appellant before the primary judge. It is convenient to address the primary judge's reasons in the context of consideration of those grounds. 3. THE APPEAL 3.1 Ground (1) – failure to follow guidelines 11 In ground (1) the appellant contends that the primary judge failed to hold that the Tribunal made a jurisdictional error by failing to comply with ss 424A or 499 of the Act. In the seven particulars appended to the ground, the appellant contends, in effect, that the primary judge failed to hold that the Tribunal fell into jurisdictional error in failing to comply with a Ministerial Direction or "guidelines", which are said to be a mandatory consideration. No particular guidelines are identified in the pleading. The substance of the ground appears to be that the Tribunal ought to have, but did not, consider whether certain Departmental policy guidelines were relevant to the exercise of its statutory task. 12 The written submissions provided by the appellant reproduce the particulars to the pleaded ground, with no further elucidation. 13 It may be noted that the Tribunal in its reasons identifies at [4] that it has "taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant", footnoting the latest DFAT country information report for Bangladesh. The appellant identifies no error that is said to have arisen from the Tribunal's decision, the guidelines said not to have been properly followed, or any other factual basis upon which this ground may be assessed. 14 Given that the ground was not raised before the primary judge and its inchoate nature, I am not satisfied that it is appropriate to grant the appellant leave to rely on it in support of his appeal. The ground is not properly identified either in the pleading or submissions and, as advanced, cannot be considered to have any prospect of success. Accordingly leave is refused: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] and [48] (Keifel, Weinberg and Stone JJ). 3.2 Ground (2) – invalid certificate 15 In ground (2) the appellant contends that the primary judge erred in failing to find the Tribunal's decision to be vitiated because the Tribunal proceeded on an invalid certificate issued under s 438 of the Act. 16 The primary judge addressed this ground in J[91]-[102] of his reasons. He noted that on 2 December 2014 an officer in the Minister's department issued the certificate, seeking to restrict disclosure of certain folios in the Minister's departmental file relating to the appellant. He then considered whether there was any reference to the folios the subject of the certificate in the Tribunal's decision, or any other evidence to indicate that the Tribunal had any regard to those folios in the conduct of its review. 17 In this regard the primary judge made the following relevant observations: (a) The redacted folios were in evidence before the FCCA; (b) They concern assessments conducted by the Minister's department in response to the appellant's request for Ministerial intervention under s 417 of the Act; (c) The documents contain references to, and assessments of, the appellant's claims to protection; (d) The Tribunal had a statutory obligation to review the delegate's decision and consider all claims advanced by the appellant and assess those claims and that obligation was separate to any assessment conducted by the Minister's department; (e) The Tribunal discharged its obligations by making findings of fact arising from what had been put before it, which did not include the redacted folios from the Departmental file. It gave reasons probative of the material before it. There was nothing to indicate that the Tribunal's decision could realistically have been different if the contents of the folios the subject of the certificate had been disclosed to the appellant; (f) Accordingly, no jurisdictional error had been established. 18 The Minister correctly accepts in the present appeal that the certificate was invalid because it simply noted that the folios related to an internal working document and business affairs. He also accepted that the Tribunal did not refer to the certificate during the hearing. He submits that the real question is whether the non-disclosure by the Tribunal gave rise to practical injustice, citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [38]. 19 I agree. 20 In SZMTA, Bell, Gageler and Keane JJ relevantly said at [38] (citations omitted): Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision. 21 The appellant does not challenge the summary of the facts provided by the primary judge, or the conclusion that the Tribunal gave reasons probative of the material before it, without having regard to the folios. Nor, having regard to the materials, can it be said that there would be justification for such a challenge. Accordingly, in my view there is no legitimate basis upon which the conclusion reached by the primary judge can be impugned. This ground of appeal is not made out. 3.3 Ground (3) – failure to disclose certificate 22 The appellant contends in ground (3) that the primary judge failed to hold that the Tribunal committed a breach of procedure. The particulars appended to the ground make apparent that the basis for the alleged failure is the failure on the part of the Tribunal to disclose the existence of the certificate to the appellant. The appellant's written submissions repeat those particulars. 23 For the reasons given in relation to ground (2), in my view this ground must also fail. 3.4 Ground (4) – unreasonable fact finding 24 In ground (4) the appellant contends that the primary judge failed to hold that the Tribunal's decision is vitiated by unreasonable fact finding. The particulars appended to this ground refer to Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, state that the Tribunal is required to consider all claims made expressly by an applicant, or clearly arising in the circumstances presented, and quotes a passage from BEG15 v Minister for Immigration and Border Protection (although with the incorrect citation) [2017] FCAFC 198 at [30] (Kenny, Tracey and Griffiths JJ): We accepted that documents covered by s 438 certificates might be relevant in determining whether or not an applicant had received procedural fairness before the Tribunal and as to the exercise of the Court's discretion to grant relief. This was so whether or not the certificate was invalid. 25 In the absence of any other indication as to the basis advanced for this ground, it would appear that it is directed, or primarily directed towards the non-disclosure of the certificate. To that extent, the ground must fail for the reasons identified above in addressing grounds (2) and (3). 26 To the extent that the appellant contends that the primary judge erred by failing to conclude that the Tribunal engaged in unreasonable fact finding, the contention must be rejected. The primary judge addressed that submission at [64]-[68] of his reasons. He noted that the evidence before the Tribunal primarily consisted of the appellant's own evidence and that the Tribunal's findings were based on inconsistencies in respect of key elements in the appellant's claims which arose from his own evidence, and his inability (in the view of the Tribunal) to provide a satisfactory response to the concerns about his claims and evidence as put to him by the Tribunal at the hearing (at J[66]). The primary judge considered that the Tribunal's impugned findings were made based on evidence and that it did have regard to the "relevant question" of whether the claims and evidence were credible such that the Tribunal could be satisfied that the appellant met the criteria for the grant of the protection visa (at J[67]). The primary judge concluded that the Tribunal's findings in this regard were reasonably open to it on what was before it, were rational, and were arrived at having regard to matters that were logically probative to the assessment of the appellant's credibility (at J[68]). 27 No error is apparent in the reasoning of the primary judge in this regard. 28 Finally, to the extent that the appellant contends that the primary judge erred in failing to take into account all of the claims that he had advanced, it is noteworthy that the appellant does not on appeal identify what claims are said to have been overlooked or ignored. Nevertheless, at J[69]-J[74] the primary judge considered a submission that the Tribunal did not pay specific regard to the appellant's mental state, and his claimed difficulty in remembering things from his past. He noted that the Tribunal had considered these claims in its reasons and made findings that despite asserting difficulties with his memory, the appellant was nevertheless able in his application for the protection visa in 2014 to refer to events said to have occurred 20 years earlier. The Tribunal also found that the appellant was able to engage meaningfully with its questions at the hearing and noted that, despite having the opportunity to do so, the appellant did not offer any medical evidence to support a contention of mental health problems (J[71]-[73]). The primary judge concluded that the Tribunal's findings were reasonably open to it. 29 No error is apparent from the reasoning of the primary judge. 30 This ground of appeal does not succeed. 3.5 Ground (5) – apprehension of bias 31 In this ground the appellant appears to contend that the primary judge erred in failing to find that the Tribunal was affected by apprehended bias. In the particulars appended to this ground the appellant contends that the apprehension of bias is evident from the Tribunal's findings, that bias could be actual or apprehended, that the primary judge failed to distinguish between the two, and that the Tribunal failed to focus on an allegation of apprehended bias. 32 This ground too must fail. The primary judge noted that the appellant appeared to contend before him that the Tribunal's conduct in its dealings with him gave rise to an apprehension of bias (J[29]). He then correctly referred to the test for apprehended bias, being whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided, citing, amongst others, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]-[8]. The primary judge noted at J[31] that (as here) the appellant provided no particulars as to how it may be submitted that the Tribunal acted in a way as to lead to a reasonable apprehension of bias, and concluded that on the evidence before the Court there was nothing to indicate that the Tribunal may not have brought an open mind to the conduct of the hearing. 33 No error is apparent from that reasoning. 4. DISPOSITION 34 The appeal must be dismissed. The appellant must pay the costs of the first respondent. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. Associate: Dated: 28 October 2022