SZSUS v Minister for Immigration and Border Protection

[2014] FCA 902

FEDERAL COURT OF AUSTRALIA

SZSUS v Minister for Immigration and Border Protection [2014] FCA 902

Citation:	SZSUS v Minister for Immigration and Border Protection [2014] FCA 902
Appeal from:	SZSUS v Minister for Immigration and Border Protection & Anor [2014] FCCA 786
Parties:	SZSUS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 452 of 2014
Judge(s):	SIOPIS J
Date of judgment:	22 August 2014
Date of hearing:	13 August 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	23
Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Ms SA Given
Solicitor for the First Respondent:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 452 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSUS
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	22 AUGUST 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs.

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 452 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSUS
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	22 AUGUST 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a judge of the Federal Circuit Court of Australia, delivered on 16 April 2014, dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).

2. The appellant is a citizen of Bangladesh who arrived in Australia on 25 October 2011 travelling on a Temporary Business visa.  On 5 December 2011, the appellant lodged an application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) for a Protection (Class XA) visa.

3. The appellant claimed to fear persecution by Awami League supporters, government agents and party related “thugs” on the basis of his association with the Bangladesh Nationalist Party (BNP).  He claimed that he was involved in general election campaigns for the BNP, and in 2004 was elected vice-president of the Gournadi police station branch of the BNP.  The appellant stated that as a result of his political profile, Awami League activists subjected him to violence, torture and intimidation after the 2008 general elections.  He said that he was assaulted by two or three Awami League activists carrying iron bars and hockey sticks.  He said he was hospitalised for two days.  The appellant also claimed that the Awami League activists sought to extort money from him in January 2010, and that he was assaulted when he refused to pay them.  The appellant said that he then fled to Dhaka.

4. The police, said the appellant, did not take any action about the assault incidents.

5. The appellant also claimed to fear harm on the basis of his father’s profile as a “razakar”, a pejorative term in Bangladesh for a Muslim League supporter who fought against Bangladeshi independence during the war of liberation.  He claimed that he faced continuous social discrimination and hatred as the son of such a person and that he was personally threatened.  He claimed his business was also affected, that his children could no longer attend school and that he was vulnerable to Awami League activists filing false war crime allegations against him.

6. The appellant also claimed that after his departure from Bangladesh for Australia, Awami League members threatened his family and assaulted his wife in May 2012 in a home invasion.

   THE TRIBUNAL

7. A delegate of the first respondent refused the appellant’s application for a protection visa.

8. The appellant applied to the Tribunal to review that decision.  At the Tribunal hearing, the appellant gave oral evidence and provided documentary material in support of his application.  The documentary material included a statement from the president of the Gournadi police station branch of the BNP, and a medical certificate relating to an assault.

9. On 9 April 2013, the Tribunal affirmed the decision of the delegate.

10. The Tribunal accepted that the appellant was a supporter of the BNP, but did not accept that he had any active role within the local BNP administration.  The Tribunal gave little weight to the documents provided by the appellant in support of his claim to be an active member of the BNP.  The Tribunal found that the appellant’s oral evidence was vague and unconvincing.  The Tribunal did not accept that the appellant was subject to the acts of violence and intimidation which he claimed, nor that he had suffered discrimination and harm because his father was a “razakar”.  The Tribunal was not satisfied that simply being a BNP supporter put the appellant at risk of harm.

    THE FEDERAL CIRCUIT COURT

11. The appellant brought an application for judicial review of the decision of the Tribunal to the Federal Circuit Court.  The appellant’s grounds of review were:

    1.The Tribunal did not consider my document which I submitted in favour of my application.

    2.The Tribunal did not consider my application under complementary protection obligation.

    3.I was denied natural justice in the case that the Tribunal failed to consider the country information where I had been persecuted.

12. The Federal Circuit Court dismissed the appellant’s application for judicial review.

    THE APPEAL

13. The appellant appeals from the decision of the Federal Circuit Court on the basis of a single ground of appeal, namely, that the Federal Circuit Court made an error in finding that there was no jurisdictional error made by the Tribunal.

14. During the hearing, the appellant made oral submissions which were directed primarily to the merits of his application for a protection visa, rather than identifying error by the primary judge.  However, the one matter raised by the appellant in his oral submissions which touched on a ground of review before the primary judge, was the fact that the Tribunal had not accorded any weight to the documentary evidence which the appellant had provided to the Tribunal.

15. In relation to this ground of review, the primary judge found that a fair reading of the Tribunal’s decision made it clear that the Tribunal had considered all the supporting material, including the documentary evidence the appellant had provided.

16. The primary judge referred specifically to two documents which the appellant had identified before her Honour as not having been accorded the proper weight by the Tribunal.  These were the statement from the president of the Gournadi police station branch of the BNP and also a medical certificate relating to injuries the appellant claimed to have suffered during the attacks made on him in December 2008 and January 2010.  The primary judge also observed that the Tribunal had identified aspects of the documents themselves which did not support the appellant’s contentions; and that the Tribunal had also relied upon, and put to the appellant, the country information on document fraud in Bangladesh.  The primary judge found that it was open to the Tribunal to give these documents no weight in light of the adverse credibility findings which the Tribunal had made in relation to the appellant’s oral evidence and the other matters to which the Tribunal referred.

17. In my view, the primary judge did not err in coming to that view.

18. Although the appellant did not in his oral submissions to this Court specifically address the other two grounds of review considered by the primary judge, I set out below, briefly, the primary judge’s findings in relation thereto.

19. By ground of review two, the appellant’s complaint was that his claim to suffer prejudice because his father had been a “razakar” was not considered by the Tribunal under the complementary protection provisions of the Migration Act 1958 (Cth). The primary judge noted that the Tribunal accepted that the appellant was the son of such a person, but that this was not a sufficient basis for finding a real risk of continuing harm to the appellant, because there was no evidence that revenge had been exacted against the children of those persons. The primary judge held that those findings were open to the Tribunal.

20. By ground of review three, the appellant contended that he was denied natural justice because the Tribunal failed to consider the country information where the appellant claimed to have been persecuted.  The primary judge said that this ground related to a newspaper article the appellant provided to the Tribunal which claimed that the police commissioner of the area to which the appellant had relocated, had advised his officers to shoot “anyone doing BNP work on sight”.  The primary judge observed that the Tribunal found that the article did not refer to a risk to persons who were no more than supporters of the BNP, and the Tribunal also found that the article did not indicate that the Awami League government agents had plans to kill BNP supporters.  The primary judge observed that the Tribunal stated that it found no information to suggest that BNP supporters, or businessmen affiliated with BNP, of which the appellant was one, faced risk of persecution in Bangladesh.  The primary judge held that those findings were open to the Tribunal.

21. The primary judge also observed that there was nothing otherwise on the face of the Tribunal’s decision record to suggest that the Tribunal had not complied with s 422B of the Migration Act in providing the appellant with natural justice in the conduct of its review.

22. In my view, the primary judge did not err in dismissing grounds of review two and three.  It follows that, in my view, the primary judge did not err in dismissing the appellant’s application for judicial review.

23. The appeal is dismissed with costs.

I certify that the preceding twenty‑three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       22 August 2014