FEDERAL CIRCUIT COURT OF AUSTRALIA
AEC15 v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 3428	

Catchwords: 
MIGRATION – Protection visa – whether the Tribunal failed to have regard to the applicant’s evidence – whether the Tribunal inappropriately rejected the applicant’s evidence under section 91R(3) of the Migration Act 1958 (Cth) – whether information provided to Tribunal was protected by professional privilege – whether information was used by Tribunal – whether privilege was waived by the applicant – application dismissed. 	

Legislation:
Evidence Act 1995 (Cth)
Migration Act 1958 (Cth), ss.36(2)(aa), 91R(3), 430(1), 476	

Benecke v National Australia Bank (1993) 35 NSWLR 110
Mann v Carnell (1999) 201 CLR 1
SZHWY v Minister for Immigration & Citizenship (2007) 159 FCR 1
SZTRY v Minister for Immigration & Anor [2015] FCCA 169	

Applicant:	AEC15	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Administrative Appeals Tribunal	

File Number:	SYG 633 of 2015	

Judgment of:	Judge Smith	

Hearing date:	1 December 2015	

Date of Last Submission:	1 December 2015	

Delivered at:	Sydney	

Delivered on:	1 December 2015	

REPRESENTATION
Solicitor for the Applicant:	Mr M. Jones, Parish Patience Immigration Lawyers	

Counsel for the First Respondent:	Mr G. Johnson SC	

Solicitors for the Respondents:	Sparke Helmore	

ORDERS
(1)	The application be dismissed.
(2)	The applicant pay the first respondent’s costs fixed in the amount of $5,800.
(3)	The name of the second respondent be amended to Administrative Appeals Tribunal.

(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Sydney	
SYG 633 of 2015
AEC15	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent
Administrative Appeals Tribunal	
Second Respondent

REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
1.	The applicant in this matter is a citizen of Bangladesh and came to Australia on 10 April 2013 on a Temporary Business visa and applied for a protection visa on 22 April 2013. He claimed, in essence, that he was a leader of, or involved high up, in the Bangladeshi National Party (BNP) and feared harm from political opponents in the Awami League, as well as from the police. At the interview conducted by a delegate of the first respondent he also claimed he had made a broadcast making negative remarks about the Awami League on national television in Bangladesh.
2.	On 25 September 2013 the delegate made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. The Tribunal conducted two hearings with the applicant who was assisted by an interpreter in the Bengali language. The first was on 30 October 2014. The second was on 21 January 2015. It will be necessary to return in due course to some of the content of those hearings.
3.	The Tribunal made its decision on 11 February 2015, setting out its reasons for its decision in a very lengthy and comprehensive statement made pursuant to s.430(1) of the Migration Act 1958 (Cth). Its decision was to affirm the decision of the delegate not to grant the applicant a protection visa. The applicant now seeks judicial review of that decision under s.476 of the Act. Because of the limited scope of the issues in the proceedings, it is not necessary to set out in any great detail the findings of the Tribunal. It is sufficient to say, for present purposes, that the Tribunal did not accept the applicant as a credible witness and rejected all of his claims.
Consideration
Ground 1
4.	The first ground in the amended application is that, in considering the applicant’s claims for the purposes of sub-s.36(2)(aa) of the Act, the Tribunal either failed to have regard to the applicant’s evidence in relation to his political activity in support of the BNP in Australia or inappropriately rejected this evidence under s.91R(3) of the Act. It is not in question that the applicant made claims about his involvement in politics in Australia, including the fact that he had taken part in a protest at Kirribilli House against human rights violations that were, he said, broadcast to Bangladesh, and that he had taken part in other protests and meetings involving the BNP.
5.	The critical passage in the Tribunal’s reasons is at [193]:
	The Tribunal further considered the applicant’s additional claims including his having claimed to have been interviewed on national television making negative remarks about the Awami League government, a matter he did not mention in his protection visa application, his human rights involvement claims that when questioned on he conceded involved attending two meetings, and his claims that he was arrested and detained overnight four times in Bangladesh. Given the findings above, the Tribunal finds these claims to be embellishments, not to be credible, and gives them no weight. It would further find, given the applicant’s conduct, that any conduct engaged in him relied on in support of his claims would have been solely for the purpose of strengthening his claim.  It does not accept any claimed involvement in any human rights organisations or political activity of any description in Australia that would draw the applicant to the adverse attention of any potential agents of harm whether or not they occurred and whatever motivation the applicant may have had if he has engaged in such activity.  It further finds that these activities claimed to have occurred in Australia would be of no interest to any potential agents of harm in Bangladesh even had they taken place. 
6.	Mr Jones, who appeared for the applicant, accepted that, in light of s.91R(3) of the Act, the Tribunal’s findings, insofar as they addressed the issues raised by sub-s.36(2)(a) of the Act and, in particular, whether the applicant was a refugee within the meaning of the Refugees Convention, properly dealt with that issue. However, as noted in the particular to the ground, he argued that the Tribunal did not properly deal with the claims insofar as they related to the complementary protection criterion in sub-s.36(2)(aa).
7.	In particular, he argues that [193] and the balance of the Tribunal’s reasons do not show any active intellectual engagement with those claims and relies particularly on the last sentence of [193], which is set out above.
8.	In my view, the Tribunal did properly deal with the claims made by the applicant concerning his involvement in politics in Australia.  Principally, that is because in the sixth line of [193] it commences with the sentence “Given the findings above…”. This sentence shows that the Tribunal has set out prior to [193] each of its reasons for rejecting all of the applicant’s claims. Those reasons can be discerned from part of the reasons of the Tribunal falling under the heading “Analysis and Assessment Study” at [170] and going through to [192].
9.	The following are notable amongst those earlier reasons. First, at [175], the Tribunal found that the applicant’s multiple entries and exits from Bangladesh were not consistent with a subjective fear of persecution in that country. Secondly, at [176], the Tribunal found that the fact that the applicant continued to work in the same workplace and live where he lived until a short time before his departure was not consistent with a subjective fear of persecution. Thirdly, it found at [181] through to [185] that the applicant’s knowledge of BNP principles, manifestos, policies and platforms was inconsistent with any of his claims to have been involved in that party.
10.	In summary, it might be said that the Tribunal made broad-ranging findings of credit against the applicant, and, because these are referred to in [193], that is the reason it gave for giving his claims no weight. In other words, it found that the applicant had not been involved, as he had claimed, in protests in Australia or that he had been interviewed on national television making negative remarks about the Awami League or that he had had human rights involvement in Australia and had been arrested and detained overnight four times in Bangladesh.
11.	Mr Jones argued that the sentence beginning “Given the findings above…” only referred to the last of the matters in the previous sentence, namely, the claim about the fact that the applicant was arrested and detained in Bangladesh. I reject that argument, because it is inconsistent with what follows. The sentences which follow the sentence in issue constitute alternative findings. The first one addresses s.91R(3) and can be left aside for the present. The second sentence following the sentence in issue is based upon several hypotheses, one of which is “whether or not they occurred”. The “they” in that sentence must, in my view, be a reference to each of the claims referred to in the first five lines of [193].
12.	Finally, in the last sentence of [193], the Tribunal makes a finding on the basis that “even had they taken place”. Once again, the word “they” refers to the factual claims made by the applicant referred to in the first five lines of [193]. For those reasons, I reject ground 1.
Ground 2
13.	The second ground concerns a short passage in the first hearing conducted by the Tribunal on 30 October 2014:
	Q.	So you arrived here on 10 April and you lodged your protection visa application on 22 April. Why did you wait for 12 days before you lodged your application, given that you fear serious harm in Bangladesh?
	A. INTERPRETER: Somebody advised me that you have not (sic) got visa for two weeks. After the visa expires, then you can apply for protection.
	Q. Who advised you of this?
	A. INTERPRETER: The man who helped me … (not transcribable) … He advised me, “You have now visa … (not transcribable) … apply now. After it expires, then you can apply for protection visa to stay in Australia.”
	Q. What was the man’s expertise that you would rely on and follow his advice in relation to your migration status?
	A. INTERPRETER: … (Not transcribable) … He was practicing migration law.
	Q. What was his name?
	A. INTERPRETER: [Name omitted].
	Q. Did you ever retain [name omitted] as your representative?
	A. INTERPRETER: He gave me that advice.
14.	Mr Jones argues that what the applicant said in respect of the advice given to him was subject to legal professional privilege and that, because of that, and in light of the decision of the Full Court of the Federal Court in SZHWY v Minister for Immigration & Citizenship (2007) 159 FCR 1 (“SZHWY”), the Tribunal had no right to use the information given by the applicant, because to do so would be to destroy the freedom of information, which was the purpose of legal professional privilege to protect.
15.	In my view, this ground fails at a number of levels.  Leaving aside the question of whether privilege, in fact, attached to what was said by the applicant at the hearing, although I would accept Mr Jones’ submission that it probably does, two questions then arise. First is whether the Tribunal, in fact, did use that information, and, secondly, whether or not the applicant had, by stating or by giving the information to the Tribunal, waived any privilege.
16.	Mr Jones supports his argument that the Tribunal used the information by relying on two paragraphs in the Tribunal’s reasons. The first is [174] where the Tribunal says:
	The applicant did not lodge a protection visa at an earlier opportunity being advised by a lawyer to apply when his business visa was due to expire.
17.	The second paragraph is at [192]:
	It repeats its findings in relation to the applicant’s delay in lodging his protection visa and multiple returns to Bangladesh and finds that his actions and inaction are inconsistent with a subjective fear of persecution and further seriously undermine his overall credibility. He does not have a subjective fear of persecution.
18.	In my view, although the Tribunal did, in fact, set out at [174] the evidence given at the Tribunal hearing over which a claim of privilege might have been made, it did not use that information. Rather, what it was concerned with was the underlying fact that the applicant had delayed in lodging his protection visa. It may be noted that that delay was not significant. It was a delay of only 12 days. In any event, no attack is made upon the use by the Tribunal of that amount of the delay, but rather on whether or not the Tribunal relied upon the privileged information.
19.	Mr Jones argued that the implication from the Tribunal’s finding about the delay was that the applicant’s acceptance of his lawyer’s advice was evidence of a willingness to engage in some type of duplicity or subterfuge to enhance his chances of success in visa application.  With respect to the argument, I can find no basis for inferring that use by the Tribunal. There is nothing express in what the Tribunal says and, in light of the obligation under s.430 of the Act, it would be difficult, in my view, to infer such complicated thinking. For that reason I find that the Tribunal did not in fact use the information given by the applicant which might have been subject to a claim of legal professional privilege.  On that basis alone the ground should fail. In any event, and in the alternative I would find that the applicant waived the privilege.  
20.	The provisions of the Evidence Act 1995 (Cth) do not apply to proceedings in the Tribunal, and thus the question of whether privilege has been waived must be determined by reference to the principles of common law. Those principles were explained comprehensively by the High Court in Mann v Carnell (1999) 201 CLR 1:
	[28]	At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege.  It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context.  Legal professional privilege exists to protect the confidentiality of communications between lawyer and client.  It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement.  It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.  Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received. 
	[29]	Waiver may be express or implied.  Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.  When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.  Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions.  She did not subjectively intend to abandon the privilege.  She may not even have turned her mind to the question.  However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication.  What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. 
	(References omitted)
21.	I note in particular the reference, at [29], to the case of Benecke v National Australia Bank (1993) 35 NSWLR 110 in which the client was held to have waived privilege by giving evidence in legal proceedings concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s versions of those instructions. This example highlighted the fact that the question of whether or not a waiver has occurred is not a matter of subjective intention or knowledge, but rather whether, as explained by the plurality in that case, the conduct of the person is inconsistent with maintenance of the confidentiality of the communication. 
22.	Here the Tribunal asked the straightforward question of why the applicant had waited for 12 days before lodging his application. In those circumstances it could not be necessarily expected by the Tribunal that the applicant would have disclosed some communication with a lawyer. Rather, that information was disclosed voluntarily by the applicant in a way that I find was inconsistent with the maintenance of confidentiality in that communication. I say that it is inconsistent because the applicant was putting that forward as an excuse for the delay. In other words, he was relying positively on what he was told as the basis as to why he did not lodge it within an earlier period after his arrival in Australia, having claimed that he had a subjective fear of persecution if he were returned to Bangladesh.
23.	A similar conclusion was arrived at by Barnes J in circumstances where it was not the question of the Tribunal, but rather the response by the applicant that had led to the disclosure of the privileged communication: see SZTRY v Minister for Immigration & Anor [2015] FCCA 169, particularly at [156] (a point not considered on the appeal: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86).  For that additional reason I would reject this ground.  
24.	Mr Jones relied on the decision in SZHWY. In that case, unlike here, the Tribunal member specifically asked questions seeking to get the applicant to give evidence about what had been said to his lawyer, and that was what was found to have been beyond the scope of the Tribunal’s power. In my view, the principal, at least in Lander J’s decision, is found at [77]:
	In my opinion, the Tribunal, when conducting its inquiry and in the exercise of its inquisitorial function, should advise a person of their right to claim privilege against self-incrimination or legal professional privilege if it appears that a question asked of the person may give rise to a legitimate claim of that privilege.
25.	While it may be, as Mr Jones argued, that underlying that statement of principle was the statement in [76], that the Tribunal was not entitled to exercise a power to destroy a freedom of communication which the law seeks to protect.  It must be understood that that statement, and then the statement of principle in [77] was made in the particular circumstances of the questions being asked by the Tribunal rather than in circumstances which pertain here which were quite different. Nothing in the decision of Rares J, who was the other judge in the majority, said anything different. Rares J found jurisdictional error for other reasons, principally those set out at [151] and [160], which were two alternative bases. In my view that case is distinguishable from the present case and the principle stated by Lander J at [77] does not apply. For that additional reason the second ground ought to be rejected.  
Conclusion
26.	There is no jurisdictional error in the Tribunal’s reasons and the application must be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:  

Date: 23 December 2015