SZSME v Minister for Immigration and Border Protection

[2014] FCA 492

FEDERAL COURT OF AUSTRALIA

SZSME v Minister for Immigration and Border Protection

[2014] FCA 492

Citation:	SZSME v Minister for Immigration and Border Protection [2014] FCA 492
Appeal from:	SZSME (Child) by his litigation guardian SZNEH v Minister for immigration and Border Protection & Anor [2014] FCCA 443
Parties:	SZSME (CHILD) BY HIS LITIGATION GUARDIAN SZNEH (FATHER) v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 278 of 2014
Judge:	WIGNEY J
Date of judgment:	7 May 2014
Legislation:	Migration Act 1958
Cases cited:	Abebe v the Commonwealth (1999) 197 CLR 510
Date of hearing:	7 May 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	42
Appellant:	In person, by his litigation representative, with the assistance of an interpreter.
Solicitor for the First Respondent:	Sparke Helmore
Second Respondent:	The second respondent filed a submitting notice save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 278 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: SZSME (CHILD) BY HIS LITIGATION GUARDIAN SZNEH (FATHER)
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	7 MAY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant’s litigation representative pay the costs of the first respondent as agreed or assessed.  

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 278 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: SZSME (CHILD) BY HIS LITIGATION GUARDIAN SZNEH (FATHER)
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE:	7 MAY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. This is an appeal from a judgment of the Federal Circuit Court.  The primary judge dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal refusing him a protection visa.  For the reasons that follow the appeal must be dismissed.

2. The appellant is a boy who is just over three years old.  Whilst he was born in Australia, he is a Bangladeshi citizen.  His mother and father are Bangladeshi citizens.  They have unsuccessfully applied for protection visas in Australia.  The appellant has an older brother who was also born in Australia.  He, too, has been refused a protection visa.

3. In October 2011, when the appellant was just over seven months old, his father lodged an application for a protection visa on his behalf.  That application was supported by a statutory declaration made by the appellant’s father, which detailed various reasons why the appellant had a well-founded fear of persecution should he return to Bangladesh.  In brief terms, the appellant’s fear of persecution was said to flow from his father’s political affiliation and links with the Bangladesh National Party (BNP). 

4. In May 2012, a delegate of the then Minister for Immigration and Citizenship refused the appellant’s visa application and provided reasons for so doing.  It is unnecessary to outline the basis of that decision.  The current Minister, who is now known as the Minister for Immigration and Border Protection, is the respondent to this appeal.

5. As he was entitled to do, the appellant’s father then applied to the Refugee Review Tribunal (the Tribunal) on the appellant’s behalf for a review of the decision refusing the appellant’s visa application.  The Tribunal convened a hearing in November 2012 and heard evidence and argument from the appellant’s father.  It also heard from the appellant’s mother and had before it documents relevant to the review.  Those documents included documents that had been before the delegate and such documents as the appellant’s father had put forward on the appellant’s behalf for the purposes of the review.  The appellant himself did not give evidence or advance any arguments or submissions before the Tribunal, no doubt because at that time he was less than three years old. 

6. Before the Tribunal the appellant’s father essentially repeated the claims and reasons that had earlier been advanced on the appellant’s behalf for why the appellant had a well-founded fear of persecution should he be returned to Bangladesh.  He also supplemented the claims and reasons by giving further evidence concerning the then current social, political and security situation in Bangladesh. 

7. The appellant’s father also advanced evidence and reasons for why the appellant satisfied the complementary protection criterion in section 36(2)(aa) of the Migration Act 1958 (the Act).  For that criterion to be satisfied in the appellant’s circumstances, the Tribunal, standing in the shoes of the Minister, had to be satisfied that Australia had protection obligations in respect of the appellant because it had substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh, there was a real risk that the appellant will suffer significant harm.

8. It is unnecessary to set out in any great detail the evidence and submissions that were advanced on the appellant’s behalf before the Tribunal.  In very brief terms, the appellant’s father contended that he was likely to suffer significant harm if he returned to Bangladesh because of his political profile and the political and security situation in Bangladesh.  He also said that he would be targeted and faced the risk of kidnap and extortion because, having now resided in Australia for a significant period of time, he would be perceived as wealthy.

9. In support of these claims, the appellant’s father gave evidence of previous incidents that had happened to him in Bangladesh.  These incidents included an occasion when he was stabbed in or around 1993, an incident when he evaded arrest on false charges advanced by the Bangladeshi Rapid Action Brigade and incidents that apparently occurred in 2005 and mid-2007 when money was demanded from him when he attempted to carry out work on a property he owned in Dhaka.

10. The appellant’s father said that because he faced a risk of serious harm, so too did his young son, the appellant.  The appellant faced the real risk, according to his father, of being left an orphan if his father was killed or kidnapped.  There was said to be no system capable of caring for orphans at risk in Bangladesh.  In addition, his father claimed that the appellant himself faced the real risk of being kidnapped, either for the purposes of extortion or because of his father’s profile or perceived wealth.

11. On 7 December 2012, the Tribunal decided to affirm the delegate’s decision to refuse the appellant a protection visa.  It provided a detailed statement of its decision and reasons. 

12. It is again unnecessary to set out in any great detail the Tribunal’s reasons for affirming the refusal decision.  It is sufficient to say that the Tribunal effectively rejected all of the evidence that had been advanced on the appellant’s behalf in support of the claim that he had a well-founded fear of persecution, or that there was a real risk that he would suffer significant harm. 

13. The Tribunal found that the appellant’s father was not a credible and reliable witness and that the evidence that he put forward, both orally and in documentary form, was not reliable and not credible.  The Tribunal’s reasons for arriving at these adverse credibility findings are clearly articulated in its reasons.  It is not necessary to spell out all the reasons why the Tribunal did not accept the appellant’s father to be a witness of truth.  Two examples of the Tribunal’s reasoning will suffice.  First, the Tribunal reasoned that the appellant’s father’s claim that he feared for his life in Bangladesh was inconsistent with the fact that, between the time he left Bangladesh to work in Brunei in 1994 and the time he left to go to Australia via Brunei in 2007, he had returned many times to Bangladesh.  He had returned to Bangladesh some seven times, roughly every 18 months to two years, and had stayed in Bangladesh between 45 and 90 days.  He appears to have had no difficulty coming and going.

14. Second, the Tribunal pointed out that whilst the appellant’s father had claimed in his evidence that certain incidents had occurred to him during the times that he had returned to Bangladesh in these periods, there were inconsistencies in that evidence.  For example, he claimed that false charges were laid against him in July 2007 and that he had managed to go into hiding and evade arrest.  Yet he also claimed that in July 2007 he was trying to build on his land in Dhaka, and that in September 2007 he was able to buy a block of land.  That is inconsistent with him going into hiding.

15. The appellant’s claim that Australia owed him protection obligations hinged, to a large extent, on the claims and evidence advanced by his father. That evidence was largely rejected by the Tribunal. It was on this basis that the Tribunal was not satisfied that the appellant satisfied either the criterion in section 36(2)(a) relating to protection obligations under the Refugees Convention or the complementary protection criterion in section 36(2)(aa).

16. It should be emphasised, however, that it does not follow that the Tribunal did not consider whether the appellant, as opposed to his father, was owed protection obligations by Australia.  A clear reading of the Tribunal’s reasons reveals that it did consider the position of the appellant.  But the claims advanced on the appellant’s behalf were based largely on the father’s position and what he claimed had happened or was likely to happen to him in Bangladesh. It is also clear from a fair reading of the Tribunal’s decision that the Tribunal did not simply focus on past events.  It obviously did focus on such events, as it was required to do, as a predictor of what might happen in the future.  It also clearly had regard, however, to the then current political, social and security position in Bangladesh.

17. Undeterred by the failure of the review application in the Tribunal, the appellant’s father applied, on the appellant’s behalf, to the Federal Magistrates Court, now the Federal Circuit Court.  He claimed that the appellant was entitled to relief because the Tribunal had made jurisdictional errors in determining his review application.  He claimed that the Tribunal made five such errors. 

18. On 7 March 2014, the primary judge considered and rejected the appellant’s case (advanced by his father) that the Tribunal erred jurisdictionally in the exercise of its jurisdiction to review the appellant’s visa application. He dismissed the appellant’s application.  It is convenient to consider together each of the five alleged errors and the reasons given by the primary judge for finding that the Tribunal did not make any error. 

19. The first error was said to be that the Tribunal failed to deal with some of the claims advanced by the appellant’s father on the appellant’s behalf.  They included the claims that the appellant’s father would be the subject of extortion if returned to Bangladesh, that the appellant was at risk of being kidnapped if he returned to Bangladesh and that criminal activities that targeted the appellant’s father were based on “political reasons”.

20. Even the most cursory reading of the Tribunal’s reasons reveals that the Tribunal considered and dealt with each of those claims. The primary judge so found.  He found that the Tribunal had not erred as alleged.

21. The second alleged error was that the Tribunal failed to consider the availability of state protection for the appellant.  The primary judge found, in relation to this alleged error, that it was only necessary for the Tribunal to consider state protection if it found that the appellant was at risk of harm.  The Tribunal found that he was not. Accordingly, it was unnecessary for the Tribunal to consider state protection.  It did not err in not doing so. 

22. The third alleged error was that the Tribunal had failed to consider the appellant’s claim that he satisfied the complementary protection criterion.  Again, even the most cursory consideration of the Tribunal’s reasons reveals that the Tribunal considered and determined that aspect of the appellant’s review application.  The primary judge so found.  He noted that the contention advanced on the appellant’s behalf appeared to be based on a misreading of the Tribunal’s reasons.

23. The fourth alleged error concerned the Tribunal’s rejection of a document that had been advanced by the appellant’s father to corroborate his evidence and support the appellant’s case.  The Tribunal rejected that document on two bases.  First, it found that the appellant’s father was not a credible or reliable witness.  Second, it found on the basis of “country” information that was before the Tribunal, being information that the appellant’s father had had the opportunity to respond to, that document fraud in Bangladesh was rife.  The primary judge found that it was open to the Tribunal to reject this document for the reasons it had given.  As such, the Tribunal did not err at all, let alone err in a jurisdictional way, in rejecting the document. 

24. The fifth and final error alleged on the appellant’s behalf in the Federal Circuit Court was that, in arriving at its finding, the Tribunal was required to, but did not, consider the difficulties that a protection visa applicant may face in proving his or her claims.  The primary judge accepted that in assessing a protection visa applicant’s claims, the Tribunal should understand the difficulties which the applicant might face in proving his or her claims.  On the other hand, the primary judge pointed out that it is for the applicant to advance whatever evidence he or she might have in support of his or her contentions of a well-founded fear of persecution.  Reference was made to Abebe v the Commonwealth (1999) 197 CLR 510 at [187].

25. The primary judge found that the Tribunal dealt with the claims and evidence advanced on behalf of the appellant in an entirely orthodox way.  It simply did not accept that the evidence was credible or reliable.  Accordingly, there was no error of the sort contended.  It should be added that at paragraph [46] of its reasons the Tribunal specifically adverted to the fact that it was required to, and did, consider the difficulties that a protection visa applicant may face in proving his or her claims.  This was another reason for rejecting this alleged error.

26. The appellant’s father, on the appellant’s behalf, now appeals to this Court.  In the notice of appeal that has been filed, five grounds are listed.  No written submissions have been filed.  The appellant’s father made oral submissions on the appellant’s behalf as the appellant’s litigation representative.  I will deal with the appellant’s father’s oral submissions in due course.

27. Before turning to the appellant’s grounds and submissions, I should note that I have given careful consideration to the Tribunal’s reasons and the judgment of the primary judge.  I am unable to discern any error, let alone any jurisdictional error, on the part of the Tribunal.  Nor am I able to discern any error in the way the primary judge determined the appellant’s application for judicial review. 

28. The specific grounds of appeal in this Court can be disposed of shortly.  None have any merit.  Ground 1 is in the following terms:

    Appellant is not satisfied with the judgment which is made by federal circuit court.

29. That is not a proper ground of appeal.  It may be accepted that the appellant or his father is not satisfied with the judgment under appeal.  That is no doubt because he lost.  The relevant question is whether there is any error involved in the judgment.  As I have already indicated, I have not been able to discern any such error. 

30. Ground 2 (as it appears in the notice of appeal) is in the following terms:

    The appellant’s father made to the matter be considered as to the foreseeable future in Bangladesh by considering only harm from “the Awami League Government”.

31. It is, with respect, difficult to understand this ground.  It appears to contend that the Tribunal erred by only considering the appellant’s father’s claim concerning harm at the hands of the Awami League.  If that is what is meant, the contention has no merit.  The Tribunal considered all aspects of the appellant’s (and his father’s) claims.  Otherwise, the ground appears to amount to no more than a complaint concerning the merits of the Tribunal’s decision.  Such a contention or complaint would not have been a proper ground of review in the Federal Circuit Court and provides no proper ground of appeal in this Court. 

32. The third ground of appeal is in the following terms:

    The federal circuit court made jurisdictional error by determining that the tribunal did not made any jurisdictional error.

33. No particulars of the jurisdictional error or errors allegedly made by either the Federal Circuit Court or the Tribunal are provided.  It is perhaps convenient, however, in the context of this very general ground of appeal, to deal with the oral submissions advanced on the appellant’s behalf in this Court. 

34. In substance, four submissions were advanced.  First, it was contended that the Tribunal simply decided the appellant’s father’s case and claims, not the appellant’s case and claims.  Inherent in this submission was the argument that, in focusing on what the appellant’s father said had happened to him in the past, the Tribunal ignored the present political, social and security situation in Bangladesh and what might happen to the appellant on his return.  This submission must be rejected.  It is perhaps not surprising that the Tribunal, to an extent, focused on the appellant’s father’s evidence and what he claimed would happen to him if he returned to Bangladesh.  That is because that evidence and those claims formed the backbone of the case advanced on the appellant’s behalf that Australia owed him protection obligations.  It was, in short, claimed that if the appellant’s father was likely to be harmed, so too was the appellant. 

35. As was said earlier, it is often necessary to consider what has happened in the past to form a view about what might occur in the future.  So much is accepted in much of the jurisprudence in relation to protection visas.  Here the Tribunal was bound to consider the claims and evidence advanced by the appellant’s father in this respect.  But it does not follow that the Tribunal ignored the position of the appellant.  A fair reading of the Tribunal’s decision and reasons reveals that it plainly did not.  Nor did the Tribunal ignore the current position in Bangladesh.  That is apparent from many parts of the Tribunal’s decision and reasons.  It is sufficient to refer only to paragraph [45] of the Tribunal’s reasons, where the Tribunal accepted the evidence that had been advanced on behalf of the appellant that there is political violence and conflict between opposing parties in Bangladesh, and that sometimes those with a political profile are targeted for harm, including sometimes kidnappings and extortion by members of opposing political factions.  The Tribunal then noted:

    The Tribunal also accepts that the general security situation and the incidence of crime in Bangladesh has worsened in Bangladesh for the reasons that the applicant’s father claims, since the applicant’s father left his country in 2011; it accepts that there have been children kidnapped for extortion and other purposes in Bangladesh.

1. The second argument advanced on the appellant’s behalf in this Court was that the Federal Circuit Court refused to accept documents that the appellant’s father wanted to provide to it concerning the current situation in Bangladesh.  The appellant’s father accepted, however, that these were not documents that had been before the Tribunal.  The documents post-dated the Tribunal’s decision.  It follows that it was correct for the primary judge to reject the tender of these documents.  They were simply irrelevant to the Court’s task. 

2. The third submission advanced in this Court is that the Federal Circuit Court ignored or did not consider the complementary protection criterion.  That submission has, in effect, already been dealt with.  It must be rejected.  A fair reading of the Tribunal’s decision reveals that it gave careful attention to whether this criterion was satisfied by the appellant.  This criterion, and the question whether the appellant satisfied it, was expressly referred to in paragraphs [16] - [18], [45], [54], [57] to [59] - [62] of the Tribunal’s reasons.  The factual and evidential considerations relevant to this criterion largely overlapped with the Refugee Convention criterion.  It is perhaps for that reason that the consideration of the factual and evidential situation in relation to both criteria was addressed together.  But it is equally clear that the Tribunal was aware of the separate tests and requirements of these criteria and dealt with them both. 

3. Finally, in the course of his submissions, the appellant’s father repeatedly referred to the fact that either the Tribunal or the primary judge or both were biased.  This allegation was not made in the review application before the Federal Circuit Court.  Nor is any such contention advanced in the notice of appeal in this Court.  The appellant’s father’s submissions gave no details or particulars of this serious allegation, nor did he point to any evidence to make good the contention.  That is no doubt because there is none.  He appears to base this allegation merely on the fact that his son’s application was refused by the Tribunal, and that the judicial review application was refused by the primary judge.  That is not a proper basis for such a serious allegation.  A fair reading of both the Tribunal’s reasons and the judgment of the primary judge reveals that they both gave thorough, careful and diligent attention to the appellant’s case and the submissions that were made before them. 

4. I return now to the grounds of appeal.  Grounds 4 and 5 may be conveniently dealt with together.  They are (as drafted) in the following terms:

   The federal circuit court made jurisdictional error by determining that the appellant have no strong chance of fear of extortion or kidnapping because of his father’s political profile. 

   The federal circuit made an error by deciding that the appellant’s father would not be subject of extortion if they returned to Bangladesh while there is a great chance of getting extorted in Bangladesh. Because of the recent situation of Bangladesh.

5. As pointed out by Ms Given in her helpful submissions on behalf of the Minister, these grounds appear to misunderstand the nature of the proceedings before the Federal Circuit Court. The Federal Circuit Court did not have jurisdiction to review the merits of the appellant’s visa application. It was not its role to make factual findings relevant to the merits of the appellant’s visa application. Its jurisdiction was limited to a consideration of whether the Tribunal failed to exercise its jurisdiction or exceeded its jurisdiction under the Act to review the delegate’s decision. The findings of the primary judge were correctly limited to whether there had been any jurisdictional error on the part of the Tribunal. He correctly found that there had been no such error. He did not engage in merits review. He did not make either of the findings referred to in these two grounds of appeal because it was not his role or jurisdiction to do so. Accordingly, these two grounds have no merit.

6. The appellant has demonstrated no error on the part of the primary judge.  The appeal is unmeritorious and must be dismissed.

7. The Minister has sought an order that the appellant’s litigation representative bear the costs of this appeal.  There would appear to me to be no good reasons why costs should not follow the event in this matter.  Accordingly, the orders of the Court are:

   (1)       Appeal dismissed.

   (2) The appellant’s litigation representation pay the first respondent’s costs of the appeal as agreed or assessed

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:

Dated:       7 May 2014