SZQID v Minister for Immigration

[2015] FCCA 839

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQID v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 839

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 91R(1), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SZQID

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 608 of 2015

Judgment of: Judge Street

Hearing date: 2 April 2015

Date of Last Submission: 2 April 2015

Delivered at: Sydney

Delivered on: 2 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr S. Speirs
Clayton Utz

ORDERS

1. Proceedings be summarily dismissed.

2. Applicant pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 608 of 2015

SZQID

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of a decision of the Tribunal dated 12 February 2015 affirming a decision not to grant the applicant a Protection (class XA) visa. 

2. The applicant identified the following grounds:

   1. The Tribunal failed to exercise its jurisdiction Migration Act.

   2. I was denied natural justice.

   3. I would like the Federal Magistrates Court to consider my case from humanitarian grounds.

3. The three grounds are patently inadequate to identify any jurisdictional error.  The application identifies in respect of the first return date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. In considering the exercise of this Court’s summary jurisdiction, I take into account the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

5. The Court identified to the applicant that it was concerned that the application failed to identify an arguable jurisdictional error and invited the applicant to identify any argument in respect of why the review or the decision was affected by jurisdictional error.  The applicant asserted that nothing was examined properly. 

6. It was pointed out to the applicant that the Tribunal did not accept the applicant was a witness of truth, that the Tribunal found that the applicant had fabricated evidence and that the Tribunal found that the applicant had embellished evidence.  These were findings that it was open for the Tribunal to make.  Being findings that were open to the Tribunal to make, they are not the subject of any jurisdictional error because the Tribunal did not accept the applicant’s credit.

7. Nothing was said from the bar table by the applicant to identify any ground of jurisdictional error.  The applicant is a citizen of Bangladesh and his claims were assessed on that basis.  He applied for a protection visa on 19 December 2012 which was refused by the delegate on 17 April 2014.

8. The applicant had earlier proceedings in respect of an earlier application for review which he had pursued up to the High Court of Australia and it was as a result of the second application that this matter was brought before the Tribunal limited to the grounds under s.36(2)(aa), as explained in paras.16 and 17 of the reasons of the Tribunal. The Tribunal carefully addressed the claims of the applicant and the applicant’s evidence.

9. The applicant appeared before the Tribunal to give evidence on 10 December 2014 and to present arguments.  The Tribunal also received oral evidence from other persons.  The hearing was conducted with the benefit of an interpreter and the applicant was represented in relation to his review at the hearing.  The applicant also provided further material after the hearing which the Tribunal has identified in its reasons.

10. The Tribunal had serious concerns about the credibility of the applicant:

    22.    The applicant’s claims are generally very similar to those made in his previous protection visa application. The information he has provided to the tribunal and the department in relation to his background and family composition has remained consistent. Nevertheless, during the hearing the tribunal raised its concerns about the applicant’s credibility and the reliability of his evidence given a number of inconsistencies, implausible claims and changes in the applicant’s oral evidence. The tribunal has taken into consideration the applicant’s post hearing statutory declaration dated 22 December 2014 and the effect his symptoms associated with post-traumatic stress, depression and anxiety, outlined in [the counsellor]’s letter, has on the applicant’s ability to consistently recall details and events. While the tribunal does not expect the applicant to recall exact dates and events in great detail, it finds some aspects of the applicant’s oral evidence to be inconsistent and implausible. The applicant also changed his oral evidence in response to issues raised by the tribunal, leading the tribunal to conclude that the applicant has not told the truth and has embellished critical aspects of his evidence in order to support his application. The reasons for this are discussed below.

11. The reasons why the Tribunal did not accept that the applicant was telling the truth and had embellished critical aspects of his evidence to support his application were carefully set out by the Tribunal in detailed reasons and, relevantly:

    25.    The tribunal is not persuaded by the applicant’s explanations about the inconsistency in his oral evidence. The applicant was very clear in his initial oral evidence that he saw the incident with his own eyes because he was there. He was then very clear in his subsequent oral evidence that he was away from his home seeing friends and leader of JI at the time, two or three miles away. While the tribunal has taken into consideration the passage of time since the event and the effects of nerves in relation to giving evidence at a hearing, and the applicant’s poor sleep and medical conditions and symptoms and medication noted above, the tribunal does not accept that these explain the inconsistencies and change in the applicant’s oral evidence in response to an issue raised by the tribunal. The tribunal considers the inconsistency and change in the applicant’s evidence reflects poorly on his credibility and the reliability of his claims.

    …

    28. The tribunal has taken the passage of time and applicant’s circumstances into account. Normally, in isolation, it would not give much weight to this inconsistency. Nevertheless, in light of the tribunal’s other concerns in relation to the applicant’s credibility, and the tribunal’s concerns that he has embellished his claims in order to strengthen his application; the tribunal finds this inconsistency reflects poorly on the applicant’s credibility and the reliability of his claims.

    …

    32.    …The tribunal also considers the inconsistency between the applicant’s oral evidence and the post hearing statutory declaration, in relation to where he lived, further undermines his credibility and the reliability of his claims.

    …

    35. …The tribunal considers the applicant’s delay in leaving Bangladesh undermines the credibility of his claims that he was in hiding and fearful for his safety at the time.

    …

    38.    The tribunal notes the applicant was unable to identify a specific reason to explain why the applicant’s family moved in December 2012. The tribunal notes the applicant’s oral response, that for the first two or three years the AL did not do anything to the supporters of JI, contradicts and undermines his own claims that his home was attacked and his wife was threatened by AL supporters in January 2009, within one month from the AL led government taking power in Bangladesh. The tribunal is concerned that the applicant could not explain in more detail why his family moved homes in December 2012. The tribunal finds the applicant’s evidence vague and contradictory and considers this reflects poorly on his credibility and the reliability of his claims.

    …

    44.    The tribunal is not persuaded by the applicant’s explanation that his wife was so mentally devastated after the attack she was not in a state of describing the situation properly. The tribunal notes she described informing her neighbours and asking the security guard. The tribunal considers the claim that the applicant’s parents were at the home during the break in and questioned about the applications location, yet the applicant’s wife would fail to mention this in either of her written statements, implausible. While the tribunal accepts the photograph provided to the tribunal shows the applicant’s father sitting in a room strewn with household goods and furniture, it does not accept that this establishes he was there at the time the house was ransacked. The tribunal is concerned the applicant has fabricated this aspect of his oral evidence, to place his parents at the scene, in order to support his application. The tribunal considers this significantly undermines his credibility and the reliability of his evidence. 

    …

    47.    The tribunal is concerned the applicant has not told the truth and has embellished critical aspects of his evidence in order to support his application. The tribunal finds the applicant is not a witness of truth and is not satisfied that he has told the truth in relation to the ongoing threats and incidents which occurred after the December 2008 elections.

12. The Tribunal concluded that the applicant is not a witness of truth and is not satisfied that he has told the truth in relation to the ongoing threats and incidents which occurred after the December 2008 elections. 

13. The Tribunal turned to the issue of complementary protection and, relevantly, found:

    52.    Nevertheless, as noted above the tribunal has significant concerns about the applicant’s credibility. The tribunal finds the applicant is not a witness of truth and is not satisfied that he has told the truth in relation to the ongoing threats and incidents which occurred after the December 2008 elections.

    …

    64.    Therefore, having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that the applicant will suffer significant harm.

    65. The tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. The applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

    66. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

14. I am satisfied that those findings by the Tribunal in respect of the credit of the applicant were open.  I am satisfied that the applicant had a genuine hearing.  I am satisfied there is no substance in the alleged grounds identified in the application and that the proceedings are doomed to failure.  I am satisfied that it cannot be said that the findings lacked an evident and intelligible justification.  I am clearly satisfied the proceedings have no reasonable prospect of success. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April 2015