SZTAT v Minister for Immigration & Border Protection

[2014] FCCA 1432

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAT v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1432

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s adverse credibility findings were open to it – whether the Refugee Review Tribunal erred in refusing the applicant’s request to investigate the authenticity of his documents – whether the Refugee Review Tribunal’s findings were open to it on the evidence and material before it – whether the Refugee Review Tribunal failed to accord the applicant natural justice arising from alleged interpretation issues – no jurisdictional error – application dismissed.

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

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
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
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
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
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Singh v Minister for Immigration (2001) 115 FCR 1
Perera v Minister for Immigration (1999) 92 FCR 6
Soltanyzand v Minister for Immigration [2001] FCA 1168
SZOYU v Minister for Immigration and Citizenship [2012] FCA 936
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230

Applicant: SZTAT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1566 of 2013

Judgment of: Judge Emmett

Hearing date: 4 July 2014

Date of Last Submission: 4 July 2014

Delivered at: Sydney

Delivered on: 4 July 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Counsel for the Respondents:

Ms Sophie Given

(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1566 of 2013

SZTAT

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 and handed down 13 June 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 Awami League in Bangladesh.

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 27 July 2010, having departed legally from Bangladesh on a Visitor (Subclass 679) visa, issued on 6 July 2010.

2. On 13 September 2010, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 23 December 2010, the Delegate refused the applicant’s application for a protection visa.

4. On 16 January 2011, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 27 March 2012, a differently constituted Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 24 April 2012, the applicant filed an application in this Court seeking judicial review of the differently constituted Refugee Review Tribunal’s decision. On 18 February 2013, orders were made remitting the matter to the Refugee Review Tribunal to make its decision again according to law.

7. On 13 June 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa. It is that decision which is the subject of the present application.

8. On 10 July 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) 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. 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.

9. 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)In December 1995, the applicant opened a restaurant in Sylhet, Bangladesh.

   b)In early 1996, the applicant became an active member of the Bangladesh National Party (“the BNP”), and assisted in the BNP’s election for his village’s seat.

   c)The applicant’s successful involvement in local BNP activities attracted the attention of local Awami League leaders, who “target[ed] me, my family, friends, and my business.”

   d)In 1996, after the Awami League victory in the federal elections, local Awami League “rebels” attacked the applicant at his restaurant, in which he “sustained physical injuries and my shop was badly damaged.”

   e)In 1998, the applicant was married and “stepped back” and “laid low from political life” to concentrate on his business. However, the applicant was “attacked again and again and asked to either join Awami League or stay at home.”

   f)On 20 July 2000, the applicant’s restaurant was burnt down by Awami League followers, for apparently not paying ‘protection’ money.

   g)In 2002, the applicant was appointed the Chairperson of the pro-BNP Jalabad Youth Group.

   h)On 15 August 2003, the applicant was invited to speak at a local BNP rally and praised the work of the BNP.

   i)On 29 April 2004, the applicant’s home was set on fire with the applicant and his family sleeping within. The applicant lodged a complaint with the Police who investigated. The Awami League members contacted the applicant and threatened him that if he did not cease the investigation, “next time there will be an explosion instead of fire.”

   j)On 2 March 2007, the applicant and several other of the Jalabad Youth Group were attacked when they attended one of the members’ house, which had been set on fire by Awami League supporters. When the applicant and others arrived at the house, the Awami League members attacked them with homemade explosives, hockey sticks, bricks, and machetes. In the melee one of the applicant’s friends was killed, and the applicant himself was beaten unconscious. The Awami League members were driven away by the arrival of other locals.

   k)The same day, an Awami League leader lodged a complaint against the applicant, stating that he had attacked the Awami League members. In response, the police started to search for and persecute BNP members, including the applicant.

   l)On 17 April 2007, the applicant was arrested, and was granted bail on 30 May 2007.

   m)On 22 June and 8 July 2007, the applicant was falsely accused with illegally taking property, and involvement in the incident on 2 March 2007. The applicant went into hiding, which attracted police attention and Awami League followers to his family.

   n)On 21 February 2009, the applicant was again falsely accused of “attacking” a public sacred site, “a charge so serious and life threatening that I had to run away” into deeper hiding.

   o)On 27 July 2010, after contact and advice with his uncle in Australia, the applicant departed Dhaka to Sydney.

   p)Since the applicant’s departure, his family members have received numerous threats for money from Awami League followers, “[pay] if I want their lives spared” and that “bullets are waiting for my family unless I pay up.”

The Delegate’s decision

1. On 11 November 2010, the applicant attended an interview with the Delegate.

2. On 23 December 2010, 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.

The RRT’s review and decision

1. On 8 February 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 28 March 2013 to give oral evidence and present arguments. This hearing date was postponed to 17 May 2013.

2. On 17 May 2013, the applicant and his legal representative attended the RRT hearing and gave evidence.

3. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

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. The RRT put to the applicant country information for comment. The RRT identified with particularity the country information to which it had regard.

5. The RRT accepted the applicant’s evidence as to his living circumstances and that he worked in a restaurant in the early 1990’s and that he operated his own businesses in Bangladesh

6. However, the RRT found that the applicant was not a “witness of truth” and that his claims as to protection were “false.” The RRT identified gaps, inconsistencies and other anomalies in the applicant’s evidence in his written statement, interview with the Delegate, his oral evidence at the first RRT hearing, and the second RRT hearing when making its adverse credibility findings.

7. The RRT found significant inconsistencies with the applicant’s evidence regarding the dates and details of certain BNP events, instances of being physically attacked by Awami League followers, his restaurant being set on fire, going into hiding, details surrounding his arrest in 2007, false accusations, and attempted extortion of money after his departure to Australia. 

8. Overall the RRT found that the applicant’s “account of his conduct from May 2007 up until the time he left Bangladesh to be far-fetched and not credible.”

9. Given its adverse credibility findings, the RRT rejected all of the applicant’s key claims.

10. The RRT also did not give evidentiary weight to any of the applicant’s documents provided in support of his claims on the basis of its adverse credibility findings and country information regarding document fraud in Bangladesh.

11. The RRT’s decision record makes clear that it decided not to inquire into the veracity of the documents, despite the applicant’s request, on the basis that its credibility concerns “overwhelmingly demonstrate” that his evidence was not credible.

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.

1. 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 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.

2. 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. 

2. On 4 September 2013 the applicant attended a directions hearing before me. 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.

3. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. On 25 October 2013, the applicant participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

4. On 14 October 2013, the applicant filed an Amended Application, and on 16 June 2014 filed written Submissions.

5. The applicant confirmed to the Court this morning that he relied on the grounds contained in his Amended Application, filed 14 October 2013, as follows (reproduced in the original):

   “1. The Refugee Review Tribunal failed to assess the credibility cumulatively.

Particulars

A. Tribunal failed to assess the credibility cumulatively that:

i) The Tribunal disbelieved what I told before it about risk. However the Tribunal ignored my continuous requests to make enquiry about the authenticity of the documents and evidences I lodged in support of my claims.

ii) The Tribunal accepted that the corruption existed in Bangladesh which was contract of its disbelief.

iii) The Tribunal set up its mind by the influence of country information and failed to assess my credibility.

2. The Refugee Review Tribunal’s failed to take into account the country’s political situation

Particulars

A The Tribunal failed to take into account the country’s political situation that:

i) I have provided the country information which shows the continuing violence in Bangladesh. However the Tribunal failed to take into account the country information.

ii) Even the Tribunal failed to acknowledge my involvement with the Australian BNP which met the complimentary protection criterion.

3. The Refugee Review Tribunal failed to accord my natural justice by not following the procedural fairness.

Particulars

A. Tribunal failed to accord my natural justice that:

i) My representative raised Interpreter issue as I was native Sylhet. I had difficulties to understand the common Bangla language of Interpreter.

ii) The Tribunal ignored my request and accordingly the Tribunal failed to accord my natural justice.

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

Ground 1

1. In oral submissions to the Court this morning in support of ground 1, the applicant said that the RRT did not accept his claims or his documents, even though he had asked the RRT specifically to look at his documents. The applicant said that the RRT did not consider the danger to his life and did not consider the present dangerous situation for the applicant in Bangladesh.

2. To the extent that the applicant complains that the RRT dismissed his documents without looking at them, the RRT’s decision record does not support such an assertion. The RRT noted that the applicant produced a five page document from the Chief Judicial Magistrate in Sylhet which the applicant alleged contained a record and details of the false charges made against him in court on 2 March 2007. The RRT then recites some detail of those documents and put to the applicant its concerns about the applicant’s inconsistent evidence in relation to court events.

3. The RRT also referred to letters provided by the applicant from persons in the BNP and noted that documents purportedly issued by Bangladesh police and courts were certified by a notary public. The RRT put to the applicant that country information before it indicating that false documents were available in Bangladesh and that, if the RRT found his evidence not credible, it may not give weight to those documents. The RRT identified with particularity the country information to which it referred.

1. The RRT noted the applicant’s request that the RRT inquire into the various sources of the documents and that such inquiry would lead the RRT to conclude that they were genuine. The RRT noted that it carefully considered this request but decided not to make enquiries in Bangladesh about the genuineness of the documents produced on the basis of the comprehensive adverse credibility findings made in respect of the applicant’s key claims. In particular, the RRT made the following finding:

   “While the documents he has produced contain assertions in support of his claims, the applicant himself has failed to give a credible account about those claims and the documents do not outweigh the Tribunal’s concerns about this credibility. Accordingly, and in view of the country information referred to, the Tribunal does not give evidentiary weight to any of these documents.”

2. There is no general obligation on a RRT to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment). The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

3. In any event, I accept the submission of the first respondent that, having regard to the comprehensive adverse credibility findings made in respect of the applicant, it was open to the RRT to proceed on the footing that no corroboration could address the RRT’s expressed and profound credibility concerns about the applicant’s claims and evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] McHugh and Gummow JJ stated as follows:

   “[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”

4. The RRT rejected the applicant’s request on the basis that its credibility concerns ‘overwhelmingly demonstrate’ that his evidence was not credible. In such circumstances, there was no obligation on the RRT in this case to conduct further inquiries where it comprehensively rejected the applicant’s claims based on its comprehensive adverse credibility findings in respect of the applicant’s own evidence (see VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J).

5. 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).

6. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. 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).

7. 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).

8. To the extent that ground 1 asserts that the RRT had “set up its mind by the influence of country information and failed to assess my credibility” suggests bias on the part of the RRT, such a claim is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

9. A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

10. A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the MRT/RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

11. The applicant’s complaints to this Court about the RRT’s adverse credibility findings 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 (see 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; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] pre North, Lander and Katzmann JJ).

12. Accordingly, ground 1 is not made out.

Ground 2

1. In support of ground 2, the applicant said that the RRT did not accept newspaper cuttings provided to it by the applicant. However, the RRT noted that none of the newspaper articles specifically related to the applicant, although they did indicate how badly the Awami League treated opponents. The RRT found that there was no credible evidence that the Awami League wished to harass the applicant and rejected the applicant’s claims about undertaking activity for the BNP and being harmed by the Awami League for that reason. As stated above, the RRT’s adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave.

2. The applicant also complained to this Court that the RRT did not accept his claim to have met people from the BNP in Australia. However, the RRT did not accept that claim on the basis that the applicant is not a witness of truth and has not been politically active in Australia because he was not politically active in Bangladesh. Again, the applicant’s complaint in respect of these findings invites merits review which this Court cannot undertake.

3. To the extent that ground 2 asserts that the RRT failed to take into account country information on the political situation in Bangladesh, a fair reading of the RRT’s decision record makes clear that the RRT considered in detail the applicant’s claim to fear harm from the Awami League and the police and other agencies acting on their behalf because of the applicant’s political activities in Bangladesh. The RRT referred to and considered the applicant’s representative’s submissions about the applicant’s claims of risk of harm in Bangladesh. However, the RRT found that the evidence put forward by the applicant as to why he is at risk in Bangladesh was false.

4. The RRT considered the applicant’s claim that the justice system in Bangladesh is corrupt and would work against him. The RRT found that there was no credible evidence before it that the Awami League wished to harm the applicant or that he is at risk of harm in Bangladesh. Because the RRT comprehensively rejected the applicant’s key claims, it found that information about corruption in the justice system to be irrelevant.

5. As stated above, the RRT put to the applicant the country information before it, and upon which it relied, in relation to the prevalence of document fraud in Bangladesh. As stated above, it was that comment that prompted the applicant’s request that the RRT undertake its own investigation in relation to the genuineness of the documents.

6. In the circumstances, a fair reading of the RRT’s decision record makes clear that the RRT considered all the evidence and material provided to it by the applicant and put to the applicant for comment its particular concerns in respect of material and evidence that it found to be relevant to the applicant’s claims.

7. As stated above, the RRT’s findings were open to it on the evidence and material before it and for the reasons it gave.

8. Accordingly, ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the RRT failed to accord the applicant natural justice because he had difficulties understanding the interpreter at the hearing and that the RRT ignored his request.

2. I understand the reference in ground 3 (ii) to the assertion that the RRT ignored his request, to be a restatement of the applicant’s complaints above about the RRT’s refusal of his request to inquire about the authenticity of his documents and evidence. That complaint is dealt with above in these reasons.

3. In oral submissions to this Court in support of ground 3, the applicant said that the RRT asked him if he understood the interpreter and that in the beginning he did, but subsequently did not.

4. The RRT’s decision record does not support that assertion. The RRT stated as follows:

   “As stated above, the representative had asked that an interpreter be provided who spoke Bengali as spoken in Sylhet. The applicant did not voice any objection to the interpreter used in this hearing and, to the Tribunal’s observation, the applicant and the interpreter understood each other. There were occasions when questions had to be repeated, but that was only because the applicant tended to give long aggressive answers to the Tribunal’s questions, even though he was told at the beginning of the hearing to speak in short sentences.”

5. There was no transcript of the RRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. At the directions hearing on 4 September 2013 the applicant was given an opportunity to file a transcript of the RRT hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

6. There was no evidence before this Court that the standard of interpretation at the RRT hearing was so inadequate that the applicant was prevented from giving evidence to the RRT, or that in errors made in interpretation at the RRT hearing were material to the conclusion of the RRT and adverse to the applicant (see Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]-[17]; Singh v Minister for Immigration (2001) 115 FCR 1; Perera v Minister for Immigration (1999) 92 FCR 6; Soltanyzand v Minister for Immigration [2001] FCA 1168). In SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 Jacobson J summarised the law on this issue as follows, at [29]–[32]:

   “The seminal authority on the standard of interpretation is the decision of Kenny J, in Perera. Although that case was decided before s 425 of the Act was amended, it has been accepted that what her Honour said in Perera is equally applicable to s 425 in its current form: Minister for Immigration v WACO (2003) 131 FCR 511 at [64].

   The relevant principles may be stated briefly. The standard of interpretation is not one of perfection. It need not be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [26]–[29]; WACO at [66].

   Importantly, not every departure from the standard of interpretation denies an applicant the opportunity to obtain a hearing under s 425 so as to give rise to jurisdictional error. The onus is on an applicant to demonstrate that the departure related to a matter of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision: Perera at [38], [45]; Applicant P 119/2002 at [16]–[18]; WACO at [69]; see also SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109 at [72]–[73] (Buchanan J).

   Whether any inadequacy in translation has been such as to deprive an applicant of the opportunity to have a hearing in accordance with s 425 involves a qualitative assessment of the conduct of the hearing before the tribunal as a whole: SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] (Jagot J).”

7. In the circumstances of this case, there is no evidence before this Court to suggest that the hearing was not ‘real and meaningful’ (see Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]).

8. Accordingly, ground 3 is not made out.

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, including written submissions by the applicant’s representative. 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 also put to the applicant such country information and invited the applicant to comment upon 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-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  4 July 2014