SZSPB v Minister for Immigration

[2013] FCCA 922

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSPB v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 922

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A, 424AA

Applicant: SZSPB

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 279 of 2013

Judgment of: Judge Driver

Hearing date: 24 July 2013

Delivered at: Sydney

Delivered on: 24 July 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Johnson
Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to the Minister for Immigration, Multicultural Affairs and Citizenship.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 279 of 2013

SZSPB

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 16 January 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh and had made claims of political persecution.  He apparently arrived in Australia on a business visa and applied to the Minister’s Department for a protection visa on 18 November 2011.  That application was refused by the delegate on 8 June 2012.

2. The applicant sought review of that decision before the Tribunal.  The applicant claimed he was involved in politics in support of the Bangladesh Nationalist Party (BNP).  He also claimed to have been involved in demonstrations in opposition to the building of a second international airport in the district of Munshiganj.  He claimed, in particular that, as a result of that activity, he had been subject to criminal charges. 

3. The applicant attended an interview before the delegate on 24 May 2012.  He attended a further hearing before the Tribunal on 3 January 2013.  The applicant was questioned at length at the Tribunal hearing about his claims.  It transpired that the applicant had spent a number of years outside Bangladesh in Taiwan.  This cast some doubt on the applicant’s claims of continuing political involvement in Bangladesh.  The Tribunal also expressed difficulty with the time of the applicant’s alleged involvement in the airport protest.  The applicant had produced a first information report translation in support of that claim.  However, that report referred to an incident occurring approximately one and a half months after the incident the applicant claimed to have been involved in. 

4. The Tribunal at the hearing put to the applicant what it described as potentially adverse information drawn from his oral evidence before the delegate. Although that information simply related to inconsistencies between his oral evidence to the delegate and the Tribunal, the Tribunal apparently regarded that disclosure as necessary pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act). The applicant sought time to respond and was granted time.

5. The applicant made a post-hearing submission on 11 January 2013.  In that submission the applicant provided further documents which he produced to corroborate his claims.  These were two references by persons purporting to be senior figures in the BNP.  The first, dated 10 December 2011, was general in its content.  The second, apparently dated 3 February 2012, referred specifically to a serious attack upon the applicant on 6 September 2011.

6. The Tribunal in its reasons considered the available information, including the post-hearing submission and documents.  The Tribunal found the applicant’s claims to be lacking in credibility and found the applicant to have been untruthful.  In particular, the Tribunal found the applicant’s claims about his BNP activities to be general and inconclusive, repetitive and superficial.  The Tribunal also found inconsistencies in matters of detail concerning his involvement.  The applicant’s stay of five years in Taiwan deepened the Tribunal’s concerns.

7. The Tribunal’s concerns were, if anything, increased by reference to the documents provided by the applicant after the hearing.  In particular, the second reference referred to a serious incident on 6 September 2011 in respect of which the applicant had made no previous claim.  The Tribunal accepted that the applicant was a supporter of the BNP but rejected the applicant’s claim of any high profile involvement.  After considering in detail the available information about the applicant’s claimed involvement in the airport protests the Tribunal, while accepting that there had been mass protests, rejected the applicant’s claim of involvement in them.

8. The Tribunal did not accept that the applicant received threats from political opponents. The Tribunal found that the applicant is a low profile BNP supporter who has been preoccupied with family business and other matters. The Tribunal noted the deteriorating law and order situation in Bangladesh but found that that did not support a claim of persecution as defined in s.91R(1) of the Migration Act. The Tribunal also found that the applicant did not qualify for complimentary protection.

9. These proceedings began with a show-cause application filed on 14 February 2013.  I gave the applicant the opportunity to file an amended application but he has not taken up that opportunity.  The original application contains four grounds:

   1. The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s review application on the basis of the wrong observations which are not required to get protection in Australia.

   Particulars: The Tribunal found these references to be very general.

   They amount to only weak, inconclusive evidence of the applicant having grown up in a BNP oriented family, as claimed.

   The applicant made no mention of his father or any other family members having been targeted by the AL or others on political grounds.

   The Tribunal registered some concerns at the hearing that the applicant’s description of his involvement in the BNP and its student and youth wings seemed to be the observations of an outsider.

   The applicant did not hold any senior position in the party.

   2. The Tribunal made a procedural mistake that the Tribunal’s findings in paragraph 67 and 69 were made wrongly.  The Tribunal did not have any evidence of its concerns were made on those paragraphs.

   Particulars: Given the Tribunal’s concerns set out in paragraph 67 above, its doubts about the reliability of the contents of the supporting letters and country information indication among other things that local entities are sometimes prepared to assist constituents abroad and their family members by providing unreliable statements that can be used to obtain visas and permanent residency abroad.

   That the applicant is at the very most, a low-level supporter of the BNP.

   3. The Tribunal made procedural mistake that the Tribunal rejected the applicant’s claim that the applicant gave false information to the Department and to the Tribunal and the applicant is a witness of low credibility.  The Tribunal has failed to establish its claim it made in paragraph 71.  The Tribunal did not have any evidence in support of its claim.  The Tribunal did not test the entire evidence of the applicant properly.  The Tribunal rejected the applicant’s genuine claim on the basis of assumption.  The Tribunal did not ask any further information.  The Tribunal did not check and verify the applicant’s evidences.  The Tribunal was not fair to assess the information provided by the applicant.  The Tribunal did not review the application properly.

   4. The Tribunal made a procedural mistake that the Tribunal did not review the review application properly and the Tribunal was engage to find out the applicant’s defects, faults and all negatives in his application. The Tribunal was made a mind to reject the application. The Tribunal did not understand the requirement of s.91R(1) of the Act.

   Particulars: Having found that the applicant is a low profile BNP supporter who is not a member or office holder, past or present, and who had no direct involvement in the Munshiganj airport protests and that he is a witness of low credibility, the Tribunal rejects all of his associated claims for protection.  The observation in the paragraph 79 is not supported by the Act.

10. The application is supported by a short affidavit, which I received.  I also have before me as evidence the court book filed on 19 March 2013.  At the show-cause hearing today the applicant produced written submissions upon which he relies.  He made no oral submissions.

11. The applicant’s principal concern appears to be that the Tribunal was wrong in its assessment of his claims. While the application and submissions refer to procedural errors the particulars generally do not rise above a dispute over the merits of the Tribunal’s decision. As I explained to the applicant, the merits of the Tribunal decision are beyond the scope of this proceeding. Ground 4 asserts a lack of understanding of s.91R(1) of the Migration Act. There is no substance to that assertion. The Tribunal referred to the terms of the section at paragraph 10 of its reasons[1].  The Tribunal applied the section in its reasons, in particular at [78][2]. In my view, the Tribunal did not misunderstand the meaning of persecution either under the Refugees Convention or the Migration Act.

    [1] Court Book (CB) 148

    [2] CB 166

12. Ground 4 also obliquely asserts bias.  There is no substance to that assertion.  There is no evidence of anything prior to the decision to support an allegation of bias.  Obviously, by the time the Tribunal made its decision, when it rejected the applicant’s claims, the Tribunal had made up its mind. 

13. It was open to the Tribunal to reject the letters which the applicant advanced after the hearing to corroborate his claims.  The Tribunal considered both the form and content of those letters in reaching its decision.  The first letter was general and did not in substance support the applicant’s claim of political persecution.  The second letter, by introducing an entirely new issue, tended, if anything, to undercut the applicant’s claims. 

14. The applicant asserts that the Tribunal was wrong to refer to the applicant having given false information to the Department and the Tribunal.  The applicant refers to [71] of the Tribunal’s reasons[3].  In my view, the conclusion reached by the Tribunal was open to it on the material before it. 

    [3] CB 163

15. The submissions traverse the grounds in the application but also raise some additional matters. The submissions assert that the decision of the delegate was erroneous. That decision is not the subject of the present judicial review application. The final paragraph of the submissions appears to assert a breach of s.424A of the Migration Act. No such breach is arguable. The only information which might arguably might have required disclosure pursuant to that section was the applicant’s oral evidence before the delegate. The Tribunal purported to disclose that information pursuant to s.424AA. Whether or not that disclosure was strictly required, I see no jurisdictional error in the Tribunal’s approach.

16. The applicant, in his submissions, also asserts the Tribunal erred in not investigating his claims.  The Tribunal has a duty of review, not a duty of inquiry or investigation.  The Tribunal met its duty of review. 

17. Finally, the applicant asserts in his submissions that the Tribunal failed to comply with an obligation to ensure that he understood the reasons for rejection of his review application.  The Tribunal had no such obligation.  The Tribunal is required to give reasons for its decisions.  The Tribunal is not required to ensure that an applicant understands those reasons. 

18. I find that the applicant has failed to advance an arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

19. In consequence of the dismissal of the application the Minister seeks an order for costs.  The Minister sought costs in accordance with the Federal Circuit Court scale.  Having regard to the time when the application was filed, and the amount of work undertaken on behalf of the Minister in response to it, I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  25 July 2013