SZTET v Minister for Immigration

[2013] FCCA 2367

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTET v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2367

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 91R, 424A, 424AA, 476.

Federal Circuit Court Rules 2001 (Cth) rr.44.11, 44.12.

Re Minister for Immigration and Multicultural Affairs; Ex Parte Durarajasingham (2000) 168 ALR 407.
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
SZSFK v Minister for Immigration & Anor [2013] FCCA 7
SZSGA v Minister for Immigration [2013] FCA 774

Applicant: SZTET

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1929 of 2013

Judgment of: Judge Nicholls

Hearing date: 11 December 2013

Date of Last Submission: 11 December 2013

Delivered at: Sydney

Delivered on: 11 December 2013

REPRESENTATION

Applicant: In Person

Appearing for the Respondents Mr R Ray

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 19 August 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth)

2. The applicant pay the first respondent’s costs set in the amount of $3,326.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1929 of 2013

SZTET

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made on 19 August 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 July 2013, which affirmed the decision of the first respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

1. In these proceedings, the Minister has filed a bundle of relevant documents (“the Court Book” – “CB”), from which the following background can be ascertained.

2. The applicant is a citizen of Bangladesh (CB 4). He arrived in Australia on 1 January 2012, as the holder of a temporary business visa (CB 15). He applied for a protection visa on 13 February 2012 (CB 1 to CB 27). The applicant claimed to have been an official with the Bangladesh National Party (“BNP”) for many years. He claimed to have been persecuted by members of the opposition political party, “the Awami League”.

3. Further, the applicant claimed that he was told to cease his political activities and that threats were made that his daughter would be kidnapped. He said that threats were also made against him personally, and that he feared harm in the future because of this (CB 19). The applicant provided various documents in support of his claims (CB 44 to CB 53). In particular, he provided a letter from the “Chairman” of the BNP in the applicant’s home district (CB 46 to CB 47).

The Delegate’s Decision

1. The applicant attended an interview with the Minister’s delegate. The delegate found that the applicant was unable “to provide a consistent and plausible account of his political and employment activities in Bangladesh” (CB 72.9). The delegate further found that he could not be “satisfied that the supporting documentation that the applicant had provided was genuine” (CB 72.8). The application for a protection visa was, therefore, refused (CB 79).

The Tribunal’s Decision

1. The applicant applied for review by the Tribunal on 20 July 2012 (CB 80 to CB 85). He attended a hearing before the Tribunal on 16 July 2013 (CB 109). The Tribunal put to the applicant, utilising the facility made available to it by s.424AA of the Act, certain information that the Tribunal had obtained from the Australian Department of Foreign Affairs and Trade (“DFAT”). In particular, that, after viewing the signature on the letter (said to be from the “local Chairman” of the BNP) that the applicant had provided, the purported author and signatory of the letter had said that the signature was not his signature, and that the document was “false” ([27] at CB 113). Further, that the statement in the letter, that he had knowledge of the applicant, was a fabrication.

2. The Tribunal found that the applicant’s “testimony” was inconsistent and implausible and that his claims had amounted to a “fabrication” ([25] at CB 113). The Tribunal did not accept that the applicant had ever been involved with the BNP or suffered harm as a result ([26] at CB 113 to [32] at CB 114). The Tribunal also found that the applicant was “completely lacking in credibility” in relation to the letter of support that he had submitted and in relation to his evidence about that letter ([32] at CB 114).

3. The Tribunal did not accept the applicant’s explanation that in his country that even if a person wrote a letter, “sometimes a person will refuse to accept they wrote the letter” ([29] at CB 114).

4. The Tribunal also took into account a number of other inconsistencies in the applicant’s evidence. This related to how the applicant had claimed to have been involved in politics ([34] at CB 114) and inconsistencies between his evidence and information that he gave in his visa application, and about his title and work for the BNP ([36] at CB 115). This was also put to him pursuant to s.424AA of the Act ([35] at CB 115).

5. The Tribunal rejected the factual basis for the applicant’s claim to fear harm ([37] at CB 115). The Tribunal gave reasons for not placing any weight on the other documents submitted by the applicant ([38] at CB 115 to CB 116).

6. The Tribunal did accept that the applicant had attended a number of meetings of the BNP in Australia, and that he had been involved in some community work.  However, the Tribunal relied on the applicant’s own evidence at the hearing that this attendance and community involvement would not in itself lead to any “difficulties” if he were to return to Bangladesh ([42] at CB 116 to CB 117).

7. The Tribunal found that such conduct in Australia, was done solely for the purpose of enhancing his claims to be a refugee, and disregarded this conduct pursuant to s.91R(3) of the Act ([45] at CB 117).

8. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Refugees Convention reason. This conclusion was based on its findings of fact as previously, and separately, set out above, and also involved its utilisation of s.91R(3) of the Act ([46] at CB 117).

9. It is important to note that the Tribunal also separately found that the applicant did not meet the definition of “significant harm” as is set out in s.36(2A) of the Act. [See also the relevant parts of s.5(1) of the Act]. This was based on its findings of fact as previously and separately set out, and on its acceptance of the applicant’s own evidence that his activities in Australia would not of themselves lead to any difficulties if he were to return to Bangladesh.

The Applicant’s Grounds

1. The application before the Court is in the following terms:

   “1.The Tribunal failed to assess my credibility in terms of the Migration Act.

   2.The Tribunal’s decision was affected by an error in that the Tribunal failed to assess the country information which was in my favour of possible persecution of my return.

   3.The Tribunal failed to assess my application under complimentary protection obligation.”

Before the Court

1. At the first Court date in this matter on 16 October 2013, the applicant appeared in person and was assisted by an interpreter in the Bengali language. At that time, I sought to explain to the applicant the nature of the proceedings that he had instituted before this Court. In particular, that what was required from the applicant were assertions of legal error on the part of the Tribunal that had some actual reference to its decision record. At that time, I set the matter down for a “show cause” hearing pursuant to r.44.11 and r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). I also referred the applicant to a lawyer on panel of the Court’s Refugee Review Tribunal Legal Advice Scheme (“RRTLAS”) to give legal advice to the applicant

2. I emphasised, at that time, the importance of the need for the applicant to identify some proper assertion of legal mistake on the part of the Tribunal and the need to articulate such a legal error.

3. The applicant has had the opportunity to obtain legal advice. Despite that opportunity, no amended application or, indeed, any argument has been put to the Court beyond what is set out in the grounds of the application.

4. At the “show cause” hearing today, the applicant again appeared in person. He was assisted by an interpreter in the Bengali language. Mr R Ray appeared for the Minister. The applicant sought an adjournment of the hearing today. The applicant submitted that he was not “familiar” with the “situation” in Australia and had been unable to obtain assistance. He could not remember whether he had spoken to the “RRTLAS lawyer”. He then said he had been given some advice. In all, the applicant explained that his request for an adjournment was for the purpose of obtaining “proper legal advice”.

5. I refused the application for an adjournment for the following reasons. First, the applicant has had a reasonable time within which to arrange any such legal advice.  The first Court date in this matter was on 16 October 2013. The hearing was held over two months later. This period must also be seen in light of the period from the date of his application to the Court (19 August 2013). A period of nearly four months.

6. Second, the applicant gave no satisfactory explanation as to why he made no attempt in that time to obtain legal advice. He said nothing to indicate that he had made any attempt to further prosecute his case in this period, either by seeking legal advice or otherwise.

7. Third, the applicant did receive some legal advice from the panel (RRTLAS) lawyer. [There was a certificate on the file confirming this.]

8. Fourth, as the Minister submitted, the applicant’s claim that he was hampered by his unfamiliarity with conditions in Australia, must be seen in light of the fact that he was able to make an application for a protection visa in less than six weeks after he arrived in Australia (CB 1 and CB 15).

9. Fifth, there was nothing in what the applicant said to the Court to create any confidence that, if he were given more time, he would take steps to secure further legal advice.

10. In all the circumstances, it was appropriate that the application for an adjournment be refused, and that the “show cause” hearing proceed today.

Consideration

1. The issue before the Court today is whether the applicant raises an arguable case for the relief that he seeks. When regard is had to the application made to the Court, it can only be assumed that the relief that the applicant seeks is that his matter be returned to the Tribunal for reconsideration.

2. The inadequate nature of the applicant’s grounds is revealed when regard is had to the Tribunal’s decision record. While, on their face, the grounds seek to make some general assertions of legal error, the lack of particularity is counterproductive to that purpose.

3. The exact terms of the grounds, as stated in the application, are identical with a number of other cases which have been seen recently in this Court, again, from Bangladeshi nationals. That, in itself, is not necessarily problematic. However, it does reveal, in the applicant’s case, why the grounds, when viewed in light of the plain language of the Tribunal’s decision record, are of no assistance to the applicant in showing that he raises an arguable case for the relief sought.

4. As set out above, nothing further has been put to the Court by the applicant despite opportunity to do so. Initially, before the Court the applicant said that he had “nothing” to say. He explained that statement by saying that he was constrained because he had not had a further opportunity to obtain legal advice. He subsequently did raise the matter of “false documents” in Bangladesh. I understood the applicant’s submission in that regard to mirror what he had put to the Tribunal (see above at [8]).

5. Ground one fails to understand that the process, or mode, of assessment of an applicant’s credibility is not prescribed in the Act. It is the case that, ultimately, the Tribunal does not have to accept the truth of what an applicant claims. Any assessment by the Tribunal is, in essence, confined by the principle that the Tribunal must act reasonably and make findings probative of the material before it.

6. In the current case, the Tribunal considered all of the applicant’s claims and his evidence in support, and in explanation of his claims. The Tribunal’s adverse credibility findings as to the applicant’s factual account of past events in Bangladesh were reasonably open to it on what was before it. (See, in particular, [33] at CB 114 to [36] at CB 115 of the Tribunal’s decision record.) The Tribunal give cogent reasons for these findings. These findings were made within its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durarajasingham (2000) 168 ALR 407).

7. I also note, and accept, the Minister’s submissions that, in dealing with the matter of credibility, and the findings arising there, the Tribunal complied with its procedural fairness obligations as set out in the Act. I note, in particular, the Minister’s reference to footnote 1 at [27] (at CB 113) of the Tribunal’s decision record:

   “I said I was going to give him information which I considered would be the reason, or part of the reason, for affirming the decision under review. I indicated that I would explain the information to him and would explain the consequences of relying on the information and would invite him to comment on or respond to that information. I indicated that he could respond to that information orally or in writing and could seek additional time to comment on or respond to the information. When the options referred to above were repeated to him on each occasion he chose to respond orally.”

8. In all, therefore, I agree with the Minister’s submissions today, that ground one does not raise an arguable case for the relief that the applicant seeks. 

9. Ground two asserts that the Tribunal failed to assess country information favourable to the applicant in relation to his claimed persecution on return to Bangladesh. The applicant does not say in his application, or otherwise, nor does he identify, what country information that may be. I note again, as the Minister submitted, that, given s.424A(3)(a) of the Act, under the relevant procedural fairness obligation the Tribunal was not required to give, or put to, the applicant the general country information. In any event, in relation to the letter purporting to be from the party official in Bangladesh, the Tribunal specifically put to the applicant the substance of the information on which it relied at the hearing (s.424AA of the Act) thus meeting any obligation that may have otherwise arisen pursuant to s.424A(1) of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46)

10. In essence, the applicant’s ground as stated fails to understand that the comprehensive rejection of his factual account meant that no amount of further recourse to other country information could have assisted him. The essence of the Tribunal’s findings about the applicant’s claims of past events, which he said gave rise to a well-founded fear of persecution, was that they were a “fabrication”.

11. Ultimately, the weight to be accorded to country information is a matter for the Tribunal. There is no indication in this case that the Tribunal did not have regard to the latest relevant country information to the extent that it relied on such information for some of its findings. Ground two also does not raise an arguable case for the relief the applicant seeks.

12. Ground three asserts that the Tribunal failed to assess the applicant’s claims under the complementary protection criterion.  Any plain reading of [47] (CB 117) and [48] (at CB 118) of the Tribunal’s decision record reveals why this ground does not raise an arguable case. Simply, the Tribunal did not fail to make any such assessment.

13. Having seen a large number of decision records in matters of this type, the current Tribunal decision record stands as a “model” for how these matters should be approached. The Tribunal at first focused on the applicant’s factual claims. It made findings on those claims, independent of any consideration of the criteria for a protection visa pursuant to either s.36(2)(a) or s.36(2)(aa) of the Act. It then separately, and independently, applied those factual findings to each of the criteria for a protection visa at s.36(2)(a) and s.36(2)(aa).

14. The Tribunal’s approach plainly avoids any possibility of the concerns, expressed in some recent authorities, that such findings on complementary protection arose from analysis that was so “bound up” with the Refugees Convention that concerns were raised as to whether the Tribunal, in those cases, applied the correct test or asked the wrong question, in particular, to its consideration of the complementary protection criterion (see SZSFK v Minister for Immigration & Anor [2013] FCCA 7 per Judge Driver and SZSGA v Minister for Immigration [2013] FCA 774).

Conclusion

1. In all, therefore, the application before the Court does not raise an arguable case for the relief sought. The application should be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 January 2014