SZQUQ v Minister for Immigration

[2019] FCCA 1363

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQUQ v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1363

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for protection visa – claim that decision of Administrative Appeals Tribunal was affected by jurisdictional error due to bias, improperly relying on third party information and failing to give proper weight to documentary evidence – no jurisdictional error established – Administrative Appeals Tribunal properly considered all claims and not affected by any form of bias – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 417, 499

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427
Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366
Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Refugee Review Tribunal and Anor; Ex Parte Aala (2000) 204 CLR 82
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
SZFWB v Minister for Immigration and Citizenship [2007] FCA 167

SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243

Applicant: SZQUQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2041 of 2016

Judgment of: Judge Dowdy

Hearing date: 17 April 2019

Delivered at: Sydney

Delivered on: 17 April 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr J. Lambe

Solicitors for the First Respondent: HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 29 July 2016 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,600.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 12 June 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2041 of 2016

SZQUQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a male citizen of Bangladesh aged 46 years, having been born on 15 October 1973. 

2. By Application filed in this Court on 29 July 2016, he seeks to quash and have re‑determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 1 July 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 30 October 2014 refusing to grant him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

1. The Applicant arrived in Australia on a Tourist (Class TR) (Subclass 676) visa on 16 September 2010.

2. The Applicant then on 28 October 2010 lodged his first Protection visa application (first Protection visa application) which was refused by a Deegate on 11 February 2011.  On 7 June 2011, the Refugee Review Tribunal (RRT) refused his merits review application and affirmed the decision not to grant to him the Protection visa. 

3. On 6 July 2011 the Applicant made a request under s.417 of the Migration Act 1958 (Cth) (the Act) for Ministerial Intervention, but on 21 October 2011 he was advised that the request did not meet the s.417 criteria. The Applicant then brought unsuccessful applications for judicial review of the RRT’s decision in the Federal Magistrates Court, the Full Court of the Federal Court and the High Court of Australia.

4. On 2 May 2013, the Applicant lodged a further application for a Protection visa which was deemed to be invalid under s.48A of the Act. However, on 24 May 2013 the Applicant lodged his present Protection visa application (present Protection visa application) which he was entitled to make by reason of the introduction on 24 March 2012 of the complementary protection criterion under s.36(2)(aa) of the Act and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235 which found that s.48A, as it then stood, did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application, as was the case here with the decision of the RRT of 7 June 2011, had been determined only on the Refugees Convention criterion.

Claims for Protection

1. In short, the Applicant claimed to have had a long history of political involvement with the Bangladesh National Party (BNP) and that he would be oppressed and harmed by the Awami League (AL). In his present Protection visa application form he stated that the AL had threatened, harassed and physically tortured him and his family members and that the AL would kill him and the police would arrest him and kill him by crossfire.  He claimed that the AL, the police and the government authority, like the Bangladesh Rapid Action Battalion, would harm and mistreat him if he went back to Bangladesh.  He claimed that he had been involved in BNP politics and that the police and the government authorities in Bangladesh would not protect him if he went back because they would listen to the AL.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 14 April 2014. The Delegate also had before her the statement of the Applicant received by the Department of the Minister on 28 October 2010 in connection with the first Protection visa application which stated:

   1. I am a Bangladeshi national and I was born in Bangladesh on 15 October 1973 in a business oriented family. My father was a freedom fighter who fought for the nation during the liberation war in 1971. A number of my relatives joined the liberation war. Two of my relatives lost their lives in the war liberation.

   2. After the liberation war my father started business. My mother is a house wife and I am the 4^th child out of four children of my parents.

   3. Our family is considered to be one of the pro-liberation forces in the country. Bangladesh     obtained its independence on 16. December 1971 against Pakistani occupation army.

   4. I started schooling in 1979 and I suppose to complete my education in 1990 but I could not appear in the examination because before exam I was arrested by the then  government led by Hossain Mohammed Ershad and I was released after examination as such I could not sit down for examination. After the above incident I became heavily involved in politics which prevented me in doing politics. After the fall of Ershad regime all political parties attended a free and fair parliamentary election which was held on 27 February 1991. In this election I worked for the BNP candidate who won the election by defeating Awami candidate. Subsequently the BNP won a majority of the seats in the Parliament and formed the government of Bangladesh.

   5. In 1993 I became an executive member of the Lalbagh Thana Jatiyatabadi Dal. During this period (1991-1996) I became one of the leading activists to make development country for our future generation. Our government made unprecedented attempt to eliminate poverty by the direction of government.

   6. During the BNP regime (1991-1996) I did a lot of work with the help of my mentor and former MP Mr. Nasir Uddin Pintu. In the entire period I was with Mr. Nasir Uddin Pintu. At this time a political turmoils was started by the Awami League led by Sheikh Hasina, president of Bangladesh Awami League. After spending full five years the BNP government handover its power to a caretaker government to constitute a free and fair Parliamentary election. As such a parliamentary election was held on 12 June 1996. In this election I worked for Lieutenant General (Retd) Shawakat Ali, a top-ranking leader of the BNP. Our main opponent was Mr. Haji Salim a notorious criminal of the Awami politics.

   7. During the above election I had campaigned door to door asked votes for our candidate and I led many processions in relation to campaign and I was identified by the Awami cadres. Finally, Mr. Salim won the election by defeating our candidate. Subsequently in this election the Awami League won a majority of the seats which enabled the Awami League to form the government of Bangladesh with the help of the Jatiya Party led by Dictator Hossain Mohammed Ershad.

   8. In 1997 through a conference I was elected the joint secretary of the Lalbagh thana BNP. After obtaining this position. I became more active and adamant in politics and became very close to senior leaders. During the Awami regime I became a target of oppression. On a number of occasions I was attempted to kill. I participated all hartals called by the BNP against the Awami League's corruption, malpractices and nepotism.

   9. The BNP called a hartal on 28 February 2000 regarding public security Act. I led hartal related picketing a procession at Gulistan. While I was leading procession Gulistan Cinama Hall I was beaten by police and they disperse our procession I became serious ill and admitted into a local clinic. I spent 7 days in the clinic. After the end of the five years term the Awami League leader Sheikh Hasina was compelled to resigned from power and transferred power to a caretaker government to constitute a Parliamentary election. As a result, on 1 October 2001 a Parliamentary election was held in Bangladesh and strongly participated in this election under the leadership of Mr. Nasiruddin Pintu who was a candidate from the BNP and our main opponent leader was Mr Hazi Salim from the Awami League. Publicly, I made speeches and invited people to cast their votes in favour of the BNP candidate. I was threatened by the Awami activists on numerous occasions. I took responsibilities to run a number of election camps. I nominated many polling agents in the Constitution. In this election our candidate Mr. Pintu won the election.

   10. In this election thee BNP led coalition captured two-thirds majority in this election and formed government of Bangladesh. After this election I spent most of the time in politics to do strong forces of the party in Dhaka region. In 2005 I was elected as the executive member of the Dhaka Mahanagar BNP led by Mr. Sadek Hossain Khoka. After the end of the tenure five years Begum Zia transferred power to a caretaker government in October 2006 but it was protested by AL League. Finally a caretaker government was installed by the army to control the election. During this time I was on the run because this time I was targeted by Awami League activists and some members of the caretaker government.

   11. Under the above-mentioned caretaker government a parliamentary election was held in Bangladesh on 29 December 2008. In this election I worked for Mr. Nasiruddin Pintu and our main opponent was Dr. Mostafa Jalal Mohiuddin. In this election I became serious target by the Awami League cadres. I did work day and night but our candidate Mr. Pintu could not win the election. Mr. Mohiuddin won the election. Ultimately the Awami League won the election and secured two third majority seats in the Parliament.

   12. On 2 January our shops were ransacked by the Awami League cadres and my brother was beaten by them mercilessly. Since the Awami League came to power I left my home in scaring them. Most of the time I was outside. In August while I was leading a procession at Dhaka I was beaten by police and a false case was filed against me. After that thought my life will not be save and I should leave the country.

   13. I had a visa to go many countries but I chose Australia to come. One of brother who helped to manage airport by bribe to leave the country. On 13 September 2010 I will not be protected by the authority in Bangladesh.

   14. If I forced to return home I will be persecuted. I seeks protection visa in light of the above circumstances and in accordance with the United Nations Convention in regard to the refugees.

2. The Delegate also had regard to a letter purportedly dated 1 February 2011 which had been submitted by the Applicant in support of his first Protection visa application, which was to the effect that he was the joint secretary for the BNP. This letter purported to be signed by a Convenor described as Lalbagh Thana BNP, being M.D. Azizullah, and was addressed “To Whom It May Concern” and purported to certify that the Applicant had been known to the writer of the letter for many years and that the Applicant had made an enormous contribution to the BNP and that he was the joint secretary of the Lalbagh Thana BNP and that if he returned to Bangladesh, he would be persecuted (BNP letter).

3. In the result the Delegate, by her decision of 30 October 2014 which I note was determined on both the Refugees Convention criterion and the complementary protection criterion, refused the present Protection visa application.  She made adverse credibility findings against the Applicant and did not accept his material claims.  In particular, she:

   a)did not accept that the Applicant was an executive member of the BNP Lalbagh Thana or was ever involved with the BNP or its leaders; 

   b)did not accept that the Applicant was associated with BNP members who were previously involved in violence against AL supporters;  and

   c)did not accept that the Applicant was harmed in the past on account of his political opinion and activities with the BNP.

4. Accordingly the Delegate refused to grant the Protection visa to the Applicant.

Tribunal Decision

1. The Applicant applied for merits review of the Delegate’s adverse decision to the Tribunal on 26 November 2014 and the Applicant appeared at a hearing before the Tribunal on 10 June 2016 to give evidence and present arguments. 

2. At [13] of its Decision Record the Tribunal correctly noted that it was limited to considering the Applicant’s claims to protection under the complementary protection criterion under s.36(2)(aa) of the Act. Its view in this regard was confirmed as correct by the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366, which decision was delivered on 14 September 2016: see at 379 [44] per Kenny, Siopis and Besanko JJ and at 398 – 399 [113] – [114] per Mortimer J.

3. From [14] – [26] of its Decision Record, the Tribunal recorded the Applicant’s claims to protection as made up to the date of the Tribunal hearing. Then from [31] – [63], the Tribunal recorded its findings and its credibility assessment of the Applicant and noted that it had eight specific issues with the Applicant’s claims and evidence which led it to conclude at [60] as follows:

   [60] Considering these eight issues cumulatively, the Tribunal finds the applicant to have been an untruthful witness in relation to all of his substantive claims. The cumulative impact of the difficulties are very damaging to the applicant’s overall credibility and cause the Tribunal to not believe any of his key claims.

4. It is sufficient for present purposes, having regard to the limited Grounds relied upon by the Applicant, to note that the eight issues which caused concern to the Tribunal were as follows:

   a)the evidence of the supposed author of the BNP letter, Mr Azizullah, that is was false and forged: see [31] – [35] of the Decision Record;

   b)inconsistencies in the Applicant's claimed level of involvement in the BNP over various timeframes: see [36] – [38] of the Decision Record;

   c)inconsistencies in terms of the period during which the Applicant claimed he had worked for his supposed mentor, Mr Pintu: see [9(6)] above and [39] – [42] of the Decision Record;

   d)the Applicant's failure to demonstrate a knowledge of Mr Pintu that would be expected of a person that had worked with him over many years: see [43] – [47] of the Decision Record;

   e)the Applicant not knowing the name of the division in which Mr Pintu was running for election in the 2008 campaign: see [48] – [50] of the Decision Record;

   f)inconsistencies in the Applicant's claims regarding being in hiding: see [51] – [53] of the Decision Record;

   g)the Applicant's frequent departure and return to Bangladesh in 2010, which the Tribunal found was not consistent with someone who feared harm in Bangladesh: see [54] – [57] of the Decision Record; and

   h)the Applicant's failure to have any involvement with BNP-Australia within Australia was not consistent with his claimed long-standing involvement with the BNP in Bangladesh: see [58] – [59] of the Decision Record.

5. I further note that the Tribunal also considered the Applicant’s claim, apparently raised for the first time at the Tribunal hearing, that he faced a real risk of significant harm if he returned to Bangladesh due to the overall security situation in Bangladesh: see [29] of the Decision Record of the Tribunal. 

6. In this regard, the Tribunal considered the DFAT country report for Bangladesh dated 20 October 2014, as it was required to do by Ministerial Direction No. 56 made by the Minister under s.499 of the Act and at [63] of its Decision Record it expressed its satisfaction that the Applicant was not “at a real risk of significant harm simply as a result of living in Bangladesh as a result of the overall security situation”. 

7. Accordingly the Tribunal found at [65] of its Decision Record, that it was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the complementary protection criterion and it affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.

Grounds of Attack on Tribunal Decision in This Court

1. The Applicant asserts the following Grounds:

   1. The decision made by the Second Respondent is effected by apprehended bias as the tribunal member could not bring an impartial mind to my case while conducting interview at the hearing of my matter.

   2. The Second Respondent heavily relied on the third party information who was not independently verified to discredit my claim strongly suggests that the member had a prejudgment in the matter and thus constituting apprehended bias.

   3. The Second Respondent made a jurisdictional error by not giving proper weight to the documentary evidence tendered before it, therefore refusing to give proper weight to the evidence provided by me and make erroneous finding and mistaken conclusion.

Consideration

Ground 1

1. In my view, there is not any evidence at all of “apprehended bias” or that the Tribunal did not “bring an impartial mind” to its merits review of the decision of the Delegate, nor in my view is there any evidence of actual bias either in the terms of the Decision Record of the Tribunal itself or otherwise.

2. Actual or apprehended bias are matters which go to procedural fairness, and the denial of procedural fairness on the part of an administrative decision-maker such as the Tribunal may result in jurisdictional error, justifying an order that the decision be set aside: Re Refugee Review Tribunal and Anor; Ex Parte Aala (2000) 204 CLR 82 at 91 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 [48] per Hayne, Kiefel and Bell JJ.

3. Actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72] as follows:

   [72]The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

4. A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97]:

   [97] The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved.” Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.

5. The test for actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 at 437 – 438 [33].

6. In my view there is not a skerrick of evidence that the Tribunal member in this case was actually biased or had pre-judged or pre-decided the review application. There is nothing with a tendency to indicate that there could be any reasonable apprehension of bias in connection with the decision of the Tribunal.

7. In my view, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 2

1. I have already found that there is no evidence of prejudgement or apprehended bias. Further, there is nothing the Tribunal’s reliance on the DFAT country information report, which could be described as “third party” information, which in any way “suggests” or evidences any prejudgment or any form of bias. The Tribunal, as I have already stated, was required by Ministerial Direction No. 56 to have regard to the DFAT country information report as it noted at [8] of its Decision Record.

2. The Minister, in his written submissions, has suggested that this Ground may also refer to the Tribunal’s findings in relation to the BNP letter. However, once again nothing in this respect has a tendency to “suggest” or evidence prejudgment or bias. The simple fact of the matter is that the BNP letter was false and the signature on it was forged: see [32] and [35] (reproduced at [30] below) of the Decision Record of the Tribunal which finding was based on [27] – [28] of the decision record of the RRT which had stated as follows:

   27.On 4 April 2011, the Tribunal contacted the Department of Foreign Affairs and Trade and asked them to ask the BNP in Dhaka whether the letter submitted by the applicant from them was genuine. It attached the letter submitted by the applicant, the contents of which are outlined in paragraph 23 above: see [10] above.

   28.DFAT advised on 28 April 2011 the following:

   On 26 April, Post contacted Mr Azizullah, Convenor of Lalbagh Thana BNP, by telephone to seek verification of the letter allegedly provided to [the Applicant] on 1 February 2011.  Mr Azizullah did not recognise any person by the name of “the Applicant” from 164/C, Lalbagh Road, Dhaka – 1211 and expressed interest to inspect the letter. Post met with Mr Azizullah at his office on 27 April and showed him the letter.  Mr Azizullah said that the Lalbagh Thana BNP office did not have any Joint government secretary named “the Applicant”. He also confirmed the letter to be false and the signature on it to be forged. The office keeps copies of reference letters provided by the Convenor, and they were unable to locate any copies of the letter to “the Applicant”. [The Applicant’s] letter also did not have a reference number which should appear on all correspondence from the Lalbagh Thana BNP office.

3. At the Tribunal hearing the Applicant did not seriously dispute that the BNP letter was not true: see [34] of the Decision Record. At [35] the Tribunal found as follows:

   [35] The Tribunal finds the Applicant’s responses unsatisfactory. It does not consider it plausible, given the claims by the Applicant of involvement in the Lalbagh Tanah BNP over many years including holding offices in the branch, that the convenor would not know the Applicant by his proper name. The Tribunal does not accept that the letter was fraudulently obtained without the Applicant’s knowledge, as the Applicant appeared to suggest to the Tribunal. The fact of the Applicant clearly obtaining fraudulent documents to seek to establish his claims, and the indication by Mr Azizullah that the Applicant was not a person known to him, is significantly damaging to the credibility of the Applicant’s claims as to involvement in the Lalbagh Thana BNP, the BNP generally and to the Applicant’s overall credibility.

4. In my view, Ground 2 fails to establish jurisdictional error.

Ground 3

1. This Ground, in substance, seeks to argue with the findings of the Tribunal and to invite impermissible merits review. It is well established that the choice and interpretation of country information and the weight that the Tribunal gives to such country information and the other evidence, material and information before the Tribunal is part of the fact-finding function of the Tribunal.  The weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 at [13] where Flick J said:

   [13] The making of findings of fact, and the weight to be given to the evidence in the course of making those findings of facts, are matters entrusted to the Tribunal alone.

2. Accordingly, in my view Ground 3 fails to establish jurisdictional error.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is effected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  22 May 2019