SZSUS v Minister for Immigration & Border Protection

[2014] FCCA 786

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 786

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all documents provided by the applicant in support – whether the Refugee Review Tribunal considered the applicant’s claims against the complementary protection criterion – whether the applicant was denied natural justice – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: SZSUS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 945 of 2013

Judgment of: Judge Emmett

Hearing date: 16 April 2014

Date of Last Submission: 16 April 2014

Delivered at: Sydney

Delivered on: 16 April 2014

REPRESENTATION

The applicant appeared in person with the assistance of a Bengali interpreter

Solicitors for the Respondents: Ms Sophie Given
Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 945 of 2013

SZSUS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 9 April 2013 (“the RRT”).

2. The applicant claims to be a citizen of the People’s Republic of Bangladesh, who fears harm from members of the ruling Awami League party, government agents, and party related thugs because of his support of the Bangladesh Nationalist Party (“the BNP”)

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 16 October 2011 having departed legally from Dhaka on a passport issued in his own name and a Temporary Business Entry (Class UC subclass 456) visa also issued on 16 October 2011.

2. On 5 December 2011, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 20 July 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 24 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 9 April 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 6 May 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a 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, 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, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) 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.”

6. Section 36(2A) of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated:

   a)His parents are deceased and he is a farmer with a wife and two children.

   b)He had an active role in the local district BNP administration and in several election campaigns.

   c)He was targeted by members of the Awami League during the national election in 2008 because of his involvement in the BNP.

   d)He went into hiding after the BNP’s election loss to the Awami League, however would occasionally return to his family and farm.

   e)In January 2010, 10 to 15 Awami League thugs stopped him and attempted to extort ‘donations’ from him. When he refused they assaulted him with an iron rod. A crowd gathered around the assault and he was able to escape the thugs.

   f)He attempted to report the incident, however the police refused to note the complaint.

   g)He moved to Dhaka after the assault.

   h)Because of his father’s involvement in the Muslim League, his children are taunted because of the stigma of being of a family where the grandfather supported the Muslim League.

   i)His father was murdered by the Awami League in 1973.

   j)His business is hindered, his safety is compromised, and his family humiliated.

   k)He fears being attacked by Awami League thugs and that he will be subject to false charges laid against him by Awami League agents.

The Delegate’s decision

1. On 16 July 2012, the applicant attended an interview with the Delegate.

2. On 20 July 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

3. The Delegate found the applicant’s knowledge of BNP policy not to be commensurate with his claimed long-standing involvement and ultimately refused the applicant a protection visa based on adverse credibility findings.

The RRT’s review and decision

1. On 24 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 11 January 2013, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 12 February 2013 to give oral evidence and present arguments.

3. On 12 February 2013, the applicant attended the RRT hearing and gave evidence.

4. The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.

5. The RRT accepted that the applicant was a supporter of the BNP but did not accept that he had an active role within the local BNP administration. The found that the applicant’s knowledge of local political conditions in Bangladesh did not indicate the applicant was a BNP activist or insider.

6. The RRT considered a letter, dated 18 January 2012, from the President of Gournadi BNP Office stating that the applicant was involved with the organisation for the past 15 years. The RRT found that that statement went beyond the applicant’s own evidence of having become an active member around 2004.

7. In relation to the applicant’s supporting documents the RRT put to the applicant country information before it about the prevalence of document fraud in Bangladesh. However, the RRT accepted that the President of the Gournadi BNP Office had written this letter to assist the applicant but placed little weight on it as independent corroboration that the applicant was actively involved in the BNP for 15 years.

8. The RRT accepted that the applicant is a supporter of the BNP and may have worked with the local BNP office while the BNP-led coalition was in power. However, the RRT found the applicant’s involvement to be limited to business and social connections and did not accept that the applicant held any formal position. The RRT rejected the RRT’s claims of active campaigning that caught the attention of opponents and rejected his claims to have suffered past persecution by reason of being a BNP supporter.

9. The RRT found the applicant’s evidence to be vague and unconvincing and did not accept that the applicant’s family background, including that he had suffered serious harm because his father was a ‘razakar’.

10. The RRT also found that the applicant’s delay in obtaining a passport suggested that he did not obtain his passport for reasons related to his protection claims. The RRT also did not accept that the applicant had tried to obtain protection in India, Malaysia, and Singapore. The RRT noted that the applicant returned to Bangladesh after each of these trips adding to the RRT’s doubts that the applicant fears serious or significant harm in Bangladesh.

11. The RRT rejected the applicant’s claims to have sought and been denied protection from police.

12. Having considered the applicant’s claims, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Bangladesh, that the applicant did not have a well-founded fear of persecution in Bangladesh and for this reason the applicant was not a person to whom Australia owed protection obligations.

13. The RRT also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that there was no credible evidence before it that members of the Awami League in Bangladesh would target him for harm by reason only of being a mere BNP supporter. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Bangladesh, there is a real risk that the applicants would suffer significant harm.

14. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter via telephone. 

2. On 17 July 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose a particularised error capable of review by this Court.

3. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

4. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice on 28 August 213. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

5. At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

6. The applicant confirmed that he relied on the grounds contained in his application filed on 6 May 2013 as follows:

   “1. The Tribunal did not consider the applicant’s documents.

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

   3. Denied natural justice in the case that the Tribunal failed to consider country information.”

7. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 asserts that the RRT did not consider the applicant’s documents submitted by him in support of his applicant.

2. I asked the applicant which documents the RRT had failed to consider. The applicant replied that the RRT did not consider any of his documents, particularly the letter from the President of Gournadi BNP Office, dated 18 January 2012, and the medical certificate relating to injuries the applicant claimed were suffered by him due to attacks in December 2008 and January 2010.

3. A fair reading of the RRT’s decision record makes clear that the RRT considered all supporting material provided by the applicant. However, the independent country information relied on by the RRT made clear that the manufacture of fake documents and the use of genuine documents to record false information is prevalent in Bangladesh. The RRT identified the country information to which it had regard.

4. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

5. The country information and the unsatisfactory nature of the applicant’s evidence led the RRT to place little or no weight on the documents provided by the applicant. The RRT identified with specificity the documents relied upon by the applicant.

6. In relation to the letter from the President of Gournadi BNP Office, the RRT accepted that it was a genuine letter. However, the RRT placed little weight on the letter as corroborative of the applicant’s claimed active involvement in the BNP in light of inconsistencies in that letter and the applicant’s own evidence.

7. In relation to the medical certificate, dated 12 May 2011, the RRT found the applicant gave confused evidence about the incident to which the medical certificate referred. The RRT identified particular inconsistencies and concerns it had with the medical certificate. Ultimately, the RRT concluded that the certificate was not genuine and, accordingly, place no weight on the document as evidence of any political attack on the applicant.

8. The RRT’s finding and conclusions in relation to the applicant’s documents were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.

9. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.”  (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

10. Accordingly, ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the RRT did not consider the applicant’s application as against the complementary criterion.

2. In support, the applicant said that the RRT had not considered the risk to him as the son of a razakar. Such a complaint cannot be made out. The RRT specifically considered that claim in considering complementary protection. The RRT accepted that the applicant is a son of a razakar. However the RRT found that there was no real risk that the ongoing war crimes investigations and prosecutions in Bangladesh would extend so far as to result in a real risk of harm to children of long-deceased razakars, even if those children “have some very low level local links with BNP.”

1. The RRT concluded that on the available evidence before it there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act, and therefore the applicant did not meet the requirements of s.36(2)(aa) of the Act.

2. Those findings were open to the RRT on the evidence and material before it and for the reasons it gave.

Ground 3

1. Ground 3 asserts that the applicant was denied natural justice because the RRT failed to consider the country information where he claimed to have been persecuted.

2. The applicant gave the RRT a copy of an untranslated Bengali newspaper article, dated 13 February 2013, claiming that the Dhaka Police Commissioner advised his officers to shoot “anyone doing BNP work on sight.” However, the article did not refer to BNP supporters and the RRT found that the article did not indicate that the Awami League government and its agents have plans to kill BNP supporters. The RRT stated that it had found no information to suggest that BNP supporters, or businessmen who are affiliated with BNP, face risk of persecution for that risk alone. The RRT considered that persecution on such a large scale would attract wide-spread coverage and the RRT has found none.

3. Those findings were open to the RRT on the evidence and material before it and for the reasons it gave.

4. Otherwise, there is nothing on the face of the RRT’s decision record to suggest that the RRT had not complied with s.422B of the Act in providing the applicant with natural justice in the conduct of its review.

5. Accordingly Ground 3 is not made out.

6. Otherwise, the applicant’s claims are more in the nature of a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

7. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT put to the applicant for comment its concerns arising from independent country information before it.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  16 April 2014