SZSVZ v Minister for Immigration and Border Protection
[2014] FCA 904
•22 August 2014
FEDERAL COURT OF AUSTRALIA
SZSVZ v Minister for Immigration and Border Protection [2014] FCA 904
Citation: SZSVZ v Minister for Immigration and Border Protection [2014] FCA 904 Appeal from: SZSVZ v Minister for Immigration and Border Protection & Anor [2014] FCCA 951 Parties: SZSVZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 525 of 2014 Judge(s): SIOPIS J Date of judgment: 22 August 2014 Date of hearing: 15 August 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 Counsel for the Appellant: The Appellant appeared in person. Counsel for the First Respondent: Ms M Stone
Solicitor for the First Respondent: DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 525 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSVZ
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE 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 525 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSVZ
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
22 AUGUST 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the decision of a judge of the Federal Circuit Court of Australia in which her Honour dismissed an application to review a decision of the Refugee Review Tribunal (the Tribunal).
The appellant is a citizen of Bangladesh who arrived in Australia on 16 October 2011 on a business visa to attend the Commonwealth Heads of Government meeting (CHOGM). The appellant applied for a Protection (Class XA) visa on 15 November 2011. The application was refused by a delegate of the first respondent on 18 May 2012.
The appellant claimed to fear harm in Bangladesh from members of the Awami League as a result of his membership and support of the Bangladesh Nationalist Party (BNP), and because he was a businessman. The appellant claimed that he would be physically harmed and would be subjected to extortion by members of the Awami League, and that this had occurred to him in the past.
The appellant submitted documents purportedly from the BNP which he claimed corroborated his contention that he was involved with the BNP including a photograph which he claimed was taken at a political rally and showed the mayor of Dhaka with a bleeding head injury.
The appellant provided with his application for a protection visa, a passport in a specified name and a date of birth of 5 June 1970. At the interview with the delegate, the appellant claimed that this was not his real name nor his date of birth.
THE TRIBUNAL
The appellant applied to the Tribunal for review of the delegate’s decision on 18 June 2012, and attended a hearing before the Tribunal on 19 November 2012. The appellant was then provided with a further opportunity to submit documents and other information in support of his claim by 17 December 2012. On 17 and 18 December 2012, the Tribunal received two further documents purportedly signed by BNP officials which sought to corroborate the testimony of the appellant. On 3 January 2013, the Tribunal received further submissions from the appellant’s adviser, referring to up-to-date country information.
The Tribunal accepted that the appellant’s passport carried a false name and false date of birth, but it did not accept that the appellant obtained the false passport and sought to leave Bangladesh due to a fear of harm as he claimed.
The Tribunal considered it inconsistent with the appellant’s claimed fear of harm that he had lived with his family in the family home and operated his business up until he left Bangladesh for Australia in 2011. The Tribunal also considered it inconsistent with the appellant’s claimed fear of harm that he did not seek refuge in India on one of the occasions when he had visited there.
The Tribunal accepted that the appellant and his family were members of the BNP and that the appellant had suffered some general harassment in Bangladesh because of this, and that he would suffer some general harassment for the same reason if he returned. However, the Tribunal did not accept that the appellant had left Bangladesh because he had suffered or feared harm amounting to serious or significant harm. The Tribunal found that there was no real chance or real risk that the appellant would suffer serious or significant harm on returning to Bangladesh.
The Tribunal considered the documents provided by the appellant, but found that they were not reliable evidence of the facts contained in them on the basis of the Tribunal’s concern as to the appellant’s credibility and country information regarding the prevalence of document fraud in Bangladesh. The Tribunal also noted inconsistences between the information in the documents and the appellant’s account of events.
On 19 April 2013, the Tribunal affirmed the decision of the delegate not to grant the protection visa.
THE FEDERAL CIRCUIT COURT
The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. A hearing of the application was held before the primary judge on 9 May 2014. The grounds of review were as follows:
1.The Tribunal accepted that the applicant has suffered (para 54 of the Tribunal decision) in Bangladesh due to his membership with the BNP and the Tribunal has not counted it as a real fear of persecution without any legitimacy , as such the Tribunal has made a jurisdictional error in this case.
2.The Tribunal has amounted irrelevant consideration regarding the applicant’s passport but the Tribunal failed to consider the gravity of the current situation which is prevailing in Bangladesh, were political activists are not save [sic] in Bangladesh. The Tribunal had made a jurisdictional error regarding this issue.
3.There are no evidentiary evidences [sic] of the Tribunal to justify this decision rather the Tribunal has made this decision on assertion. The Tribunal made a jurisdictional [error] in considering the totality of this case.
The primary judge found that none of the grounds were made out and dismissed the application with costs.
In relation to ground one of the application for judicial review, the primary judge held that it was open to the Tribunal to find that, although the appellant had suffered, and would suffer, some general harassment if he was to return to Bangladesh because of his affiliation with the BNP, such harassment did not and would not amount to serious or significant harm. The primary judge considered that this ground did no more than express disagreement with the findings and conclusions of the Tribunal, and as such invited an impermissible merits review.
With respect to ground two of the application for judicial review, the primary judge held that the Tribunal’s rejection of the appellant’s evidence that he obtained a false passport to save his life was open to it in light of the adverse credibility findings that it had made in respect of the appellant’s oral evidence. The primary judge found that the appellant’s complaint that the Tribunal failed to consider the current political situation in Bangladesh, was not made out as the Tribunal had regard to country information about the issue.
In relation to ground three of the application for judicial review, the primary judge held that the appellant’s contention that there was no evidence to support the Tribunal’s findings was not made out, on the basis that a fair reading of the Tribunal’s decision record made clear that the Tribunal explored the appellant’s claim with him at the hearing and made findings which were open to it. The primary judge further found that the Tribunal was not required to present evidence to support its findings, and was not required to conduct investigations into the appellant’s claim.
THE APPEAL
On 27 May 2014, the appellant appealed from the decision of the Federal Circuit Court. The notice of appeal is to the following effect:
1.I was given judgment that I am not a long-term BNP member but I have enough evidence which is proved that I am a long-term BNP member.
2.Also I was refused and mentioned that my passport is false. Actually I had to take a second passport to skip from Bangladesh to protect myself from the opposite party’s attack.
3.Also I had to returned from India and Nepal to Bangladesh because I wasn’t secured there either.
4.I would like to request to Judge Emmett to re-investigate all my documents before he [sic] mentioned these are deceitful without any significant evidence.
5.Also I would like to request to Judge Emmett why the decision was given straightforward and taken lightly that returning in Bangladesh wouldn’t have a problem.
6.Also I would like to confirm which way returning to Bangladesh is safe and secured where the country is corrupted and isolated, people get killed and murdered everyday enormously.
During the oral hearing before this Court the appellant’s submissions did not expand upon or elucidate the grounds of appeal in his notice of appeal. The appellant’s submissions were directed towards the merits of his protection visa application, rather than identifying error by the primary judge.
Grounds 1, 2, 3 and 6 appear to take issue with the Tribunal’s factual findings and do not allege any error by the primary judge.
To the extent, however, that the appellant may have intended, by these grounds, to contend that the primary judge erred in not finding jurisdictional error by the Tribunal in making its factual findings in relation to the matters mentioned in these grounds, the contention is rejected. The assessment of the credibility of a witness and the making of factual findings are within the jurisdiction of the Tribunal. Insofar as the appellant complains about the rejection of his documentary evidence, this was open to the Tribunal in light of the adverse credibility findings it made in respect of his oral evidence. Further, the primary judge did not err in finding that it was not the role of the Federal Circuit Court in a judicial review application to consider the merits of the Tribunal’s decision.
It is difficult to discern the gravamen of grounds 4 and 5. However, it was not the role of the primary judge to investigate or make findings as to the authenticity of the documentary evidence relied upon by the appellant before the Tribunal. Nor was it the role of the primary judge to make findings as to whether the appellant could safely return to Bangladesh. The primary judge did not err in declining to do so. To the extent that these grounds complain that the primary judge erred in finding that the Tribunal had not considered the country information, that contention is rejected. The Tribunal considered and accepted the country information (see [45] of the Tribunal’s decision record) but found that such harm as the appellant would suffer on his return to Bangladesh would not be significant harm because of his low profile in the BNP. That was a finding open to the Tribunal, and the primary judge did not err in finding that the country information had been considered by the Tribunal.
This appeal is dismissed with costs.
I certify that the preceding twenty‑two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 22 August 2014
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