SZTGH v Minister for Immigration
[2015] FCCA 434
•27 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 434 |
| Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether there was evidence to support adverse findings made by the Refugee Review Tribunal – 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, 425, 474, Migration Regulations 1994 (Cth) reg.2.01. |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZMWQ v Minister for Immigration (2010) 272 ALR 59 SZFGB v Minister for Immigration (2003) 77 ALD 402 SZLGP v Minister for Immigration (2009) 181 FCR 113 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 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 SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 |
| Applicant: | SZTGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2123 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 6 February 2015 |
| Date of Last Submission: | 6 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Ben Zipser |
| Counsel for the Respondents: | Mr Phillip Salem |
| Solicitors for the Respondents: | Sparke Helmore |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2123 of 2013
| SZTGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 13 August 2013 and handed down on 13 August 2013 (“the RRT”).
The applicant claims to be a citizen of Bangladesh, who fears harm from members of the ruling political party, the Awami League, as well as the Bangladeshi police, because of his involvement with a rival political party, the Bangladesh Nationalist Party (“the BNP”).
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
The applicant arrived in Australia on 2 December 2011 having departed legally from Iran on a passport issued in his own name and a subclass 676 visa issued on 24 October 2011 .
On 13 January 2012, the applicant lodged an application for a protection (Class XA) visa with the (then) Department of Immigration and Citizenship (“the Department”).
On 20 June 2012, the Delegate refused the applicant’s application for a protection visa.
On 20 July 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 13 August 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.
On 10 September 2013 , the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
Legislative framework
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).
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”).
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.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
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.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
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.
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.”
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.
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.
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
In his application for protection, the applicant stated the following:
a)The applicant was a vice president of the Bangladesh Jatiotabadi Jubo Dal (“the BJJD”), a district executive committee of the BNP.
b)On one occasion when the applicant was returning from the party office he was beaten, resulting in his hospitalisation. The applicant’s business was ransacked by members of the Awami League and his life threatened should he continue to act for the BNP.
c)The applicant fears that should he return to Bangladesh, he will be killed by the Awami League. The applicant further fears that the Awami League will influence the Police and RAB to arrest the applicant and kill him by crossfire.
d)In order to save his life, the applicant fled to Iran, from where he then travelled to Australia.
The Delegate’s decision
On 20 June 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.
The Delegate expressed doubts as to the applicant’s credibility and found that the applicant had fabricated key claims in his application for protection in an attempt to mislead the Department and manufacture protection claims. The Delegate noted the applicant’s brief, vague claims in his application, considering the lack of detail to undermine his claims. The Delegate also noted that a number of claims advanced by the applicant at interview were identical to claims advanced by other protection visa applicants in unrelated matters.
The Delegate did not find the applicant’s account of his social, political and employment activities to be consistent or coherent. The Delegate noted that the applicant was evasive when questioned about these issues at interview. Having considered the applicant’s claims and testimony, the Delegate formed the opinion that the applicant was fabricating claims in the course of the interview.
The Delegate also expressed concerns in relation to the applicant’s vague testimony relating to his decision to leave Bangladesh for Iran.
The applicant was questioned as to his reasons for leaving Iran. He replied that he did not feel safe as a Sunni Muslim and came to Australia because he knew that Australia offered protection on human rights grounds. When asked as to the specifics of how he organised his visa, the applicant was generally vague in his answers.
Ultimately, the Delegate found that on the basis of the cumulative serious deficiencies in the applicant’s claims and testimony that the applicant was not a credible witness.
On the basis of the adverse credibility finding, the Delegate found that the applicant held neither a well-founded fear of persecution, nor were there substantial grounds for believing that the applicant was at a real risk of suffering significant harm should the applicant be returned to Bangladesh. On this basis, the Delegate found that the applicant did not satisfy the Refugee criterion under s.36(2)(a) of the Act or the complementary protection criterion under s.36(2)(aa) and accordingly refused the applicant’s application for a protection visa.
The RRT’s review and decision
On 30 July 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 28 May 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 29 July 2013 to give oral evidence and present arguments.
On 29 July 2013, the applicant attended the RRT hearing and gave evidence.
On 6 August 2013, the RRT received from the applicant a document in Bangladeshi and English. The document contained some minor details as to the applicant’s claims.
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 identified with particularity the country information to which it had regard. The RRT put to the applicant country information for comment.
The RRT did not accept that the applicant left Bangladesh because of the harm that he claims or that he fears to return to Bangladesh. The RRT did not find the applicant not to be a credible, truthful or reliable witness. The RRT found that the applicant had fabricated his claims and concocted evidence to achieve an immigration outcome. The RRT did not accept that the applicant was ever involved in the BNP in any position that he claimed to have held, or was known by BNP leaders and workers because of his social activities.
Having rejected the applicant’s claims to have been a member of the BNP, the RRT also rejected the applicant’s claims to have suffered harm in Bangladesh because of his involvement with the BNP. In particular, the RRT rejected the applicant’s claims to have ever been targeted, harassed or threatened by the Awami League or any other body, or to have a false case of murder laid against him. The RRT also rejected the applicant’s claims that he would face difficulties because of his family’s involvement with the BNP.
The RRT concluded that, on the basis of the evidence before it, the applicant did not have a well-founded fear of persecution for a Convention related reason, were he to return to Bangladesh.
Having regard to its adverse credibility findings, the RRT was not satisfied that the applicant met the refugee criterion in s.36(2)(a) of the Act, or the complementary protection criterion in s.36(2)(aa) of the Act and affirmed the decision under review.
The proceeding before this Court
The applicant was represented before this Court by Mr Ben Zipser, of counsel.
Mr Zipser confirmed that the applicant relied on an amended application filed on 6 March 2014. Those grounds are as follows:
“1. The Tribunal found in paragraph 35 of its decision that it “does not accept the applicant was involved in the BNP in the manner he claimed from 2008 to date or was known to BNP leaders because of his social activities” and, on this basis, the applicant was “not… a witness of truth as to his involvement in the BNP” and “is completely lacking in credibility”. The Tribunal fell into jurisdictional error in making this finding on one or more of the following basis:
a) The Tribunal expressly found that Harun Mollah and Mannan Mollah stated that they did not know, or know of, the applicant, or that the applicant was not known by or to Harun Mollah and Mannam Mollah; and implicitly found that Sheikh Turin stated that he did not know, or know of, the applicant, or expressly found that the applicant was not known by or to Sheikh Turin. There was no evidence before the Tribunal to support the findings, and the findings were a critical step in the ultimate conclusion reached.
b) The Tribunal took into account irrelevant considerations which it was not permitted to take into account, being evidence which did not exist.
c) The Tribunal’s findings were irrational or illogical in that there was no logical connection between the evidence in the information provided by DFAT (at page 83 of the Court Book) and the inferences or conclusions drawn by the Tribunal in paragraph 35 of its decision.”
Counsel for the applicant, Mr Zipser, contended that the RRT fell into jurisdictional error in dealing with information obtained by Department of Foreign Affairs and Trade (“DFAT”) from Bangladesh. The applicant had claimed to the Department and the RRT that, since 2008, he was involved in the BNP as general secretary of his local Thana, co-president or vice-president of the Pabna District Branch, had undertaken social work with flood victims and was otherwise politically active in the BNP.
The RRT caused DFAT to make inquiries in Bangladesh concerning a letter from a person claiming to be the president of the Pabna District Branch. The RRT requested DFAT to inquire as to whether the letter was genuine and whether the applicant is or was the co-president of the Branch.
DFAT was unable to obtain an answer as to whether the letter was genuine. However, in relation to whether or not the applicant is or was the co-president of the Branch, the further response was that none of three people asked by the DFAT investigator and who were members of the Pabna District Branch, remembered the applicant to be a co-president of a party. One of the persons recalled knowing someone with the applicant’s name but could not confirm him to be a co-president of the Party. The DFAT investigator was told that “a co-president holds an important position in the party and if the applicant actually held the position, then one of the three Jubodal members that he verified with would have definitely remembered the applicant.”
Based on that information, the RRT made the following finding:
“As the current President, Sheik Tuhin has no knowledge of the applicant’s claimed role in the party, only recalls someone with his name, and as Harun Mollah, President of Shujanagar Upazilla Committee of Jubodal; and Mannan Mollah, the previous Judodal President of Shujanagar Upazilla, who held the position for six to eight years before a new committee was formed two years ago, also have no knowledge of the applicant’s claimed role in the party or knows the applicant this leads the Tribunal to find that the applicant was not and is not involved with the BNP as Co-president of Vice President. While Sheikh Tuhin recalled knowing someone named [similar name to the applicant], I expect that if the applicant was active in BNP politics either as Co-President or Vice President in Pabna District or previously as General Secretary of his Thana, or as well-known as he claims because of his social activities he would be known by these BNP leaders, particularly due to their length and time with the party as they are from the applicant’s own area. This is particularly so as it is the applicant’s claim he was known by BNP leaders because of his social activities. It follows, based on the evidence before it, the Tribunal does not accept the applicant was involved in the BNP in in the manner he claims from 2008 to date or was known to BNP leaders because of his social activities. It finds him not to be a witness of truth as to his involvement in the BNP in the manner he claims.”
The applicant’s complaint, as I understand it to be, is that the three members in Bangladesh who were asked whether the applicant was the co-president of the Pabna District Branch were not asked whether they knew the applicant, whether he held any other positions in the BNP or whether he was involved in the BNP in any other way. The only response from the three members was that the applicant was not a co-president of the Party, although one of the three members recalled someone with the applicant’s name. The applicant submitted that this evidence may support, not contradict, the applicant’s claim that he was actively involved with the BNP. The applicant also submitted that none of the three members gave evidence which supported the RRT’s findings that none of the three members knew the applicant, thereby causing the RRT to reject the applicant’s claims to have been involved in the BNP in the manner claimed.
Mr Zipser submitted that making a finding of fact, which is a critical step in the ultimate conclusion reached, for which there is no evidential support may constitute jurisdictional error (see SZMWQ v Minister for Immigration (2010) 272 ALR 59 at [125] per Rares, Besanko and Flick JJ; SZFGB v Minister for Immigration (2003) 77 ALD 402 at [19] per Manfield, Selway and Bennett JJ)
Mr Zipser submitted that the finding of fact that none of the three members in Bangladesh knew the applicant, was a critical step in the RRT’s ultimate conclusion that the applicant was untruthful. Mr Zipser submitted that the RRT had damned the applicant’s credibility by reference to evidence that did not exist. In support, Mr Zipser referred to SZLGP v Minister for Immigration (2009) 181 FCR 113 at [37] per Logan J, where the Court was critical of a tribunal’s “process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document.”
Mr Zipser submitted that the RRT took into account alleged evidence that the three members approached by DFAT did not know the applicant when there was no such evidence before it. Mr Zipser also submitted that, in the circumstances, the RRT’s finding was illogical in that there was no connection between the evidence of the three members approached and the inferences or conclusions drawn by the RRT from that evidence that none of them knew the applicant. Mr Zipser referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] and [136] in support of that proposition.
However, the RRT put to the applicant that the information the DFAT investigator was told that a co-president holds an important position in the Party, and if the applicant actually held the position then one of the three members would definitely have remembered the applicant.
Further, there is nothing to indicate that the RRT did not fully comply with the requirements of s.424AA. The applicant has not sought to prove non-compliance by tendering a transcript of the RRT hearing. In the absence of such evidence, the Court should infer that the RRT did comply with its obligations: SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] per Rares J; SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19] per McKerracher J.
In particular, the RRT indicated to the applicant that the fact that the applicant was not known by the people contacted by DFATe, may lead it to find that the applicant was never actively involved in BNP politics, despite the fact that one of the members remembered someone with a similar name to that of the applicant.
The RRT noted that in response, the applicant had asked the RRT to ring one of the members. However, the RRT told the applicant that the RRT did not know whether that person would be on the other end of the line, and in those circumstances that may not be persuasive and may not assist the applicant. The applicant then requested further time to provide further information. That request was refused by the RRT. The applicant does not suggest that the RRT’s exercise of its discretion to refuse that further time constituted jurisdictional error.
In the circumstances, the RRT had squarely put to the applicant that he was not known by any of the three members, although the RRT acknowledged that one of the persons remembered somebody with a similar name to that of the applicant. Accordingly, it was open to the RRT on the evidence and material before it to find that none of the persons contacted had any knowledge of the members claimed role or knew the applicant.
The RRT was entitled to rely on those findings in rejecting the applicant’s claims ever to have been involved in the BNP. The RRT noted that whilst one of the persons recalled someone with the applicant’s name, the RRT found that if the applicant was active in BNP politics or as well-known as he claimed because of his social activities, he would be known by BNP members from the applicant’s own area, contacted by DFAT.
In the circumstances, the RRT’s findings were open to it on the evidence and material 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)
Accordingly, none of the grounds of the amended application are made out.
Conclusion
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 also put to the applicant independent country information before it and invited the applicant to comment upon it.
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.
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.
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.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 27 February 2015
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