SZRPL v Minister for Immigration and Citizenship

[2013] FCA 1198

FEDERAL COURT OF AUSTRALIA

SZRPL v Minister for Immigration and Citizenship [2013] FCA 1198

Citation:	SZRPL v Minister for Immigration and Citizenship [2013] FCA 1198
Parties:	SZRPL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 1148 of 2013
Judge(s):	GREENWOOD J
Date of judgment:	15 November 2013
Catchwords:	MIGRATION – consideration of an application for leave to appeal from orders of the Federal Circuit Court of Australia
Date of hearing:	8 November 2013
Date of last submissions:	8 November 2013
Place:	Brisbane via Video-Link to Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	38
Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Jonathan Kay Hoyle
Solicitor for the First Respondent:	Natasha Blake, Clayton Utz Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1148 of 2013

BETWEEN: SZRPL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	15 NOVEMBER 2013
WHERE MADE:	BRISBANE VIA VIDEO-LINK TO SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed. 

2.The appellant pay the costs of the first respondent of and incidental to the appeal. 

3.The title of the first respondent be amended to “Minister for Immigration and Border Protection”. 

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1148 of 2013

BETWEEN:

SZRPL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE:	15 NOVEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There are two issues raised for determination in this appeal by the grounds relied upon in the Notice of Appeal.  Other grounds and issues were contended for before the Federal Circuit Court of Australia but only two grounds are agitated in this appeal. 

2. The appellant contends, in effect, that the Federal Circuit Court erred by failing to find jurisdictional error on the part of the Refugee Review Tribunal (the “Tribunal”) in deciding that it could not be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason (as that term is understood for the purposes of the Migration Act 1958 (Cth) (the “Migration Act”), should he return to Bangladesh.  Jurisdictional error is also said to be found in the Tribunal’s decision that it could not be satisfied that any basis had been established for finding there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there would be a real risk that the appellant would suffer significant harm in terms of s 36(2)(aa) of the Act. 

3. Two contended grounds of jurisdictional error are asserted. 

4. First, the appellant contends that although the Tribunal wrote to the appellant on 28 March 2012 inviting him to provide any information (or further information) going to the question of whether the appellant was entitled to a Protection Visa on the footing of demonstrated grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, a real risk of suffering “significant harm” existed (the “complementary protection” grounds of s 36(2)(aa), s 36(2A), s 36(2B) and s 36(2C) of the Migration Act), the Tribunal failed to “clearly explain” the nature of the evidence the appellant should give to the Tribunal related to the complementary protection criteria. 

5. Further, the Tribunal failed to explain the “distinction between the relevant migration law and the complementary protection criteria”.  The appellant contends that it follows from these failures that he was denied an opportunity to “raise his argument on the basis of [the] complementary protection issue cumulatively and sufficiently”. 

6. All of these matters represent Ground 1 of the appeal. 

7. Second, by Ground 2, the appellant contends that the Tribunal “indicated country information on the decision” and although country information shows that political violence occurs in Bangladesh “based on [a person’s] political opinion”, the Tribunal failed to take the country information into account when assessing the appellant’s application for review of the delegate’s decision to reject the appellant’s application for a Protection Visa. 

8. No other question is agitated by the grounds of appeal. 

9. On the hearing of the appeal at 10.15am on 8 November 2013, the appeal was adjourned to 2.15pm that day.  On the morning of the appeal, the appellant advised the Federal Court Registry in Sydney that he would need the assistance of a translator fluent in Bengali as his English language skills are limited.  Accordingly, the Court made arrangements for a translator to be available at 2.15pm and adjourned the hearing of the appeal until then. 

10. The appellant made brief oral submissions in support of the appeal.  The oral submissions were made in general terms and not directed to either of the grounds of appeal relied upon.  However, the appellant contended that he had not been given the opportunity of enough time to properly put his contentions to the Federal Circuit Court of Australia nor given an opportunity to put newspaper articles about the contemporary dangers individuals face in Bangladesh, and other papers, before the primary Judge. 

11. Neither of these additional matters are recited or relied upon in the grounds of appeal.  Moreover, Ground 2 of the present appeal was not relied upon as a ground of jurisdictional error on the part of the Tribunal, before the primary Judge.  Nevertheless, I will address in these reasons the additional oral matters raised by the appellant. 

12. Having regard to the grounds of appeal, it is not necessary to set out the entire history of the application.  However, these matters ought to be noted.  The appellant is a Bangladeshi citizen who sought (and was denied) a Protection Visa on the contended footing of a well‑founded fear of persecution for his political opinions and activities in supporting the Bangladesh Nationalist Party (“BNP”).  The appellant contended that he and his business partner, Mr Jain Uddin, were targeted by members of the rival political group, the Awami League.  In July 2010, an assault occurred upon Mr Uddin resulting in his death.  The appellant was a witness to those events.  The appellant contended that he too would be murdered by these same members of the Awami League should he return to Bangladesh. 

13. Although the Tribunal made a number of findings of fact in favour of the appellant about circumstances surrounding his activities in Bangladesh, the Tribunal also found, importantly, much of the appellant’s evidence, his claims and contentions to be unbelievable, confusing and unsound.  See particularly para 63 and paras 66‑70 of the Tribunal’s conclusions arising out of its analysis of the various factual matters. 

14. As to the conflict between, on the one hand, the appellant and his business partner, and on the other hand, their rivals, the Tribunal found that the rivalry and threats between the two groups and ultimately the events leading to the death of Mr Uddin had no “significant political aspect” to it and that the harm the appellant claimed to fear could not be said to have a “motivation in the Convention ground of political opinion” (as to which see para 70 of the Tribunal’s decision).  Rather, the animosity and rivalry was attributable to disputes and contests over land claims and the right to conduct and operate quarrying activities on the relevant land.  The rivals of the appellant and Mr Uddin, according to the Tribunal’s assessment, reasoning and findings, were seeking to appropriate to themselves the business undertaking which was being conducted by the appellant and Mr Uddin. 

15. This context now brings me to Ground 1 of the appeal. 

16. On 28 March 2012, the Tribunal wrote the following letter to the appellant.  I will quote the letter in full having regard to its significance in the proceedings.  There is no contest that the appellant received the letter and nor is there any contest that as a result of receiving the letter the appellant attended a further Tribunal hearing in relation to the matters raised by the letter on 17 April 2012 in Sydney where the appellant was assisted by an interpreter.  The letter is in these terms:

    Dear [appellant]

    INVITATION TO APPEAR BEFORE THE TRIBUNAL – MR [APPELLANT]

    I am writing about the application for review made by you in relation to a decision to refuse to grant a Protection (Class XA) visa.

    On 24 March 2012, after the date of your hearing with the Tribunal, new alternative criteria for the grant of a protection visa were introduced by the Migration Amendment (Complementary Protection) Act 2011. This legislation provides that an applicant for a protection visa who is found not to be a refugee may nevertheless be a person to whom Australia has protection obligations on “complementary protection” grounds. 

    Under the new legislation a person may qualify for a protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of his or her removal from Australia to a receiving country, there is a real risk he or she will suffer significant harm. 

    The legislation provides that a person would suffer “significant harm” if: 

    a)    He or she will be arbitrarily deprived of their life; or
            b)    The death penalty will be carried out; or
            c)    He or she will be subjected to torture; or

    d)He or she will be subjected to cruel or inhuman treatment or punishment; or

    e)He or she will be subjected to degrading treatment or punishment.

    As the Tribunal has not made a decision about your claims for protection you are invited to provide information, in addition to the information you have already provided, as to whether you meet the alternative complementary protection criterion. 

    You are invited to provide this information, and present arguments, at a resumed hearing.  Alternatively, if you do not wish to attend the hearing, you may provide this additional information in writing, to the Tribunal by 17 April 2012. 

    The Tribunal has arranged a hearing for: 

    [Full details of the proposed 17 April 2012 hearing at 1.30pm is then set out in the letter]

    The Tribunal will only change this hearing date for good reason.  Please contact the Tribunal immediately if you are unable to attend the hearing on this date. 

    The enclosed leaflet “Information about Tribunal Hearings” contains important information about hearings and your rights.  In particular, you may ask the Tribunal to obtain oral evidence from another person or persons.  Such a request must be given to the Tribunal within 7 days of being notified of this invitation. 

    Please read and complete the enclosed “Response to Hearing Invitation” form to confirm the hearing.  Please use this form or attach additional information if you have any requests or any new information which you wish the Tribunal to consider.  Any documents or written arguments sent to the Tribunal should be in English or be translated by a qualified translator. 

    If you have any questions, please contact me on the number listed below, or telephone the Tribunal’s national enquiry line on 1300 361 969.  For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

    Yours sincerely

    TRIBUNAL OFFICER

17. This letter sets out clearly and plainly the matters about which the appellant was invited to submit any further information and present argument at a resumed hearing. 

18. An earlier hearing had occurred on 24 January 2012. 

19. The appellant attended the further hearing on 17 April 2012 and at both hearings the appellant was assisted by an interpreter fluent in the Bengali and English languages (see para 23 of the Tribunal’s reasons). Plainly enough, the Tribunal is required by s 425 of the Migration Act to provide the appellant with a meaningful opportunity to present evidence and argument relating to the issues arising in relation to the decision under review by the Tribunal.  However, the Tribunal is not required, having set out plainly in writing the matters recited in the letter of 28 March 2012, to explain the nature and scope of the evidence the appellant might wish to put before it or the scope of the forensic enquiry the appellant would need to undertake to establish a contended “real risk” of suffering “significant harm” in terms of the matters set out at (a) to (e) in the letter. 

20. By the letter of 28 March 2012, the Tribunal clearly identified the “issue” arising in relation to the decision under review as a question of whether the appellant was entitled to a Protection Visa on the footing of demonstrated substantial grounds for believing that as a necessary and foreseeable consequence of his removal to Bangladesh, there existed a real risk he would suffer significant harm.  The Tribunal set out at (a) to (e) five notions or subject matter constituting “significant harm” for this purpose which the appellant was to consider and then determine whether there was additional information he wished to put to the Tribunal and whether there were arguments arising out of existing or further information to support a basis for a Protection Visa in reliance upon the “complementary protection” grounds. 

21. The letter of 28 March 2012, objectively viewed on its face, made the relevant issue of concern to the Tribunal (or, more properly put, the issue arising in relation to the decision under review), plain. 

22. There is no jurisdictional error on the part of the Tribunal in the manner in which it chose to deal with and address the issue raised by the letter of 28 March 2012 and the manner in which it conducted the receipt or possible receipt of evidence and argument about the issue so raised.  The Tribunal drew the issue of concern to the attention of the appellant and provided the appellant with a clear and meaningful opportunity to deal with the issue. 

23. There is thus no demonstrated jurisdictional error on the part of the Tribunal and there is no error, on the basis of Ground 1, on the part of the Federal Circuit Court of Australia in reaching the decision it reached. 

24. As to Ground 2, the central matter is this. 

25. The Tribunal in reaching its decision did not rely upon country information.  Clearly, the Tribunal had regard to documents given to it by the applicant as part of the Review Application such as a set of photocopied documents in Bengali with notarised English translations, and other documents submitted by the applicant such as newspaper clippings (see paras 28, 32 of the Tribunal’s decision), and particular letters.  In its reasons the Tribunal expressed concerns and reservations about those documents.  Apart from these documents given to the Tribunal by the appellant, the Tribunal makes reference at para 58 to “independent country information”.  At paras 52 and 58 the Tribunal said this:

    52.I put to the Applicant that, with regard to the various documents he had submitted, the Tribunal had information indicating that false or fraudulent documents are readily available in Bangladesh and are often submitted to support claims in migration or refugee applications.  He agreed this was true but said the documents he had submitted were all correct.  He invited the Tribunal to carry out an investigation into them.

    58.Noting once more the independent country information concerning the ready availability of forged or fraudulent documents in Bangladesh I put to the Applicant that this could raise doubts as to the authenticity of the material he had submitted.  He said he agreed with the information but all the documents he had submitted were true. 

26. These references to independent country information are references in the context of assessments and reasoning relating to the question of whether weight should be attributed to particular documents submitted by the appellant to the Tribunal.  The Tribunal however did not rely upon independent country information in determining either the question of whether the appellant held a well-founded fear of persecution for a Convention reason or in determining whether the complementary protection grounds were made out having regard to the issues raised in the letter of 28 March 2012.  To the extent that the Tribunal raised the question of reference to independent country information in the context of the ready availability of false or fraudulent documents in Bangladesh often submitted in support of claims in migration and refugee applications, the Tribunal in this case found in favour of the appellant on the documents in these terms:

    64.I note, however, that the Applicant has provided a number of documents which, taken together, appear to bear out his claim that a person named Jain Uddin was killed, that there is a history of violence and corruption in the operation of a quarry in Sylhet and that he himself has taken legal action in at least one case against other people over what is said to be the seizure of his property.  I also note that he has submitted a letter from the Jatiyotabadi Jobodal (Jubodal) supporting his claim to have been a worker for that organization, even though this does not make any reference to his claimed positions on its executive.  While I note that there is considerable information pointing to the ready availability of forged or fraudulent documents in Bangladesh I accept that the material submitted by the Applicant does not give an appearance of having been specifically created to support his claims. 

27. At para 65 the Tribunal recorded that it gave the appellant the benefit of the doubt on a number of foundation matters such as accepting that he owned a quarrying business in partnership with Mr Uddin; the business suffered a loss when some of its land in the quarry was seized by others; the appellant took legal action to seek its return; the appellant and Mr Uddin were in competition with the group that seized the land over elections to leadership positions within a local trade body relating to the quarrying industry; and Mr Uddin was murdered in circumstances where the appellant was a witness to the events. 

28. Having made those findings the Tribunal then evaluated, on the merits, the claims of the appellant and, so far as ground 2 of the grounds of appeal is concerned, the Tribunal simply did not rely upon any country information in reaching its conclusions as to the plausibility of the appellant’s contentions and, in broad terms, the credibility of the appellant.  To the extent that the Tribunal accepted some foundation facts about rivalry in relation to the quarrying activities, the seizure of property, legal action taken about that, and rivalry in the elections the trade body, the Tribunal found that none of the events said to support a well-founded fear of persecution involved politically motivated attacks. 

29. In ground 2, the appellant may be suggesting that because country information shows that violence exists in Bangladesh and is expressed against an individual based upon the political opinion that person holds, the Tribunal failed to properly take into account in reaching its decision about the complementary protection grounds, the threat that the appellant would suffer “significant harm” for the purposes of the Migration Act. Ground 2, of course, is not framed in that way and is confined to the contention that the Tribunal had regard to country information and failed to properly take that information into account, although the content of that failure is not identified at all.

1. As I have indicated, the position reflected in the Tribunal’s decision is that it did not have regard to country information in reaching its decision.  Moreover, the Tribunal did not accept that the appellant would be subjected to politically motivated harm nor that he would suffer serious harm. 

2. As to these matters of serious harm, I note the following findings and conclusions of the Tribunal.

   71.I have considered, but do not accept, the Applicant’s claim that the group which opposes him intend to cause him serious harm.  As noted, I do not accept that this group fear him as a witness against him or that they are sufficiently angered to wish to harm him because of the civil litigation he has taken against [them] or his links with Jain Uddin.  I consider that if they had in fact, intended to do him any harm they would have had ample opportunity to do so during the eight months between the killing of Jain Uddin, in July 2010 and his departure from Bangladesh in March 2011.  During the whole of this period he was, by his account, living with his family in his own house in Sylhet.  When he was asked about this at the hearing his response was simply that he tried to remain indoors and avoid “face-to-face” contact with his opponents.  I find it quite implausible that such tactics could have saved him from anyone determined to injure or kill him and I do not accept that anyone intended to do so during this period.  He claims that on one occasion the group came to his house and, being told that he was not at home, stole his motorcycle and vandalised part of his house but I am not satisfied that this is consistent with the actions of persons who had any serious intent to kill him and I am not satisfied that such an incident in fact occurred. 

   72.I am reinforced in this view by the fact that the Applicant remained in Bangladesh for more than two months after his Australian tourist visas was [sic] issued in January 2011.  His only explanation for this at the hearing was that he needed to remain in Bangladesh to arrange for the care of his properties.  As put to him, however, I am not satisfied that such a preoccupation is at all consistent with a genuine fear of death or injury and I find that his actions raise strong doubts about his claimed fear of harm.  I note as well the fact that his wife and children returned from Australia to Bangladesh to live once more in the family house.  At the hearing the Applicant claimed they had since moved because of concerns about their safety but I am not satisfied that the decision for them to return to the family home, said to have been well-known to the Applicant’s enemies, is at all consistent with his claimed fear of harm. 

3. These paragraphs set out the reasoning arising out of the earlier analysis, in relation to the likelihood of a fear of harm.  At para 73 the Tribunal concludes that it can not be satisfied that the appellant faces serious harm from the identified sources for any reason and that moreover there have been no material changes in that situation since the Applicant arrived in Australia in March 2011. 

4. Apart from the primary finding that the Tribunal could not be satisfied as to the appellant’s claim of a well-founded fear of persecution for a Convention reason should the appellant return to Bangladesh now or in the reasonably foreseeable future, the Tribunal dealt with the question of future harm and ultimately concluded in these terms at para 75:

   75.I have also considered whether the Applicant might meet the alternative criterion for complementary protection.  Having done so however I am not satisfied that the information before the Tribunal provides any basis for finding there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.

5. It followed that the Tribunal could not be satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention nor under s 36(2)(aa) of the Act. 

6. Ground 2 of the notice of appeal was not argued before the primary Judge.  In any event, no basis is made out for jurisdictional error on the part of the Tribunal by reason of the contention.  No error on the part of the primary Judge is otherwise made out. 

7. I return now to the observations the appellant made orally at the outset at 2.15 pm on the adjourned hearing of the appeal.  The principal matter relied upon by the appellant was the proposition that he had not been given the opportunity of enough time, before the Federal Circuit Court, to properly put his contentions to that Court nor given an opportunity to put newspaper articles and other papers before the primary Judge in that Court.  As I note earlier, neither of these matters were identified as a ground of appeal.  I do not propose to now entertain these additional grounds by, in effect, giving leave to amend the notice of appeal.  However, I make this observation. 

8. I have read fully and carefully the reasons for judgment of the primary Judge in the context of addressing the grounds of appeal as framed and in that context I have also considered the Tribunal’s reasons and the documents comprising the Appeal Book.  However in the context of the further oral submissions I have also considered the primary Judge’s analysis of the adjournment application made to his Honour, the Applicant’s submissions as described by the primary Judge, the first respondent’s submissions, and the primary Judge’s consideration of those submissions.  I can find no error on the part of the Primary Judge and certainly no content is identified by the appellant as to the contention. 

9. I am not satisfied that there is any basis for concluding an apprehension of error on the part of the primary Judge in relation to the oral matter raised by the appellant.  It follows that the appeal must be dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal.

I certify that the preceding thirty‑eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:       15 November 2013