SZTGH v Minister for Immigration and Border Protection

[2015] FCA 512

FEDERAL COURT OF AUSTRALIA

SZTGH v Minister for Immigration and Border Protection [2015] FCA 512

Citation:	SZTGH v Minister for Immigration and Border Protection [2015] FCA 512
Appeal from:	SZTGH v Minister for Immigration [2015] FCCA 434
Parties:	SZTGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 209 of 2015
Judge(s):	YATES J
Date of judgment:	29 May 2015
Catchwords:	MIGRATION – application for protection visa – whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review
Legislation:	Migration Act 1958 (Cth) s 424AA
Date of hearing:	14 May 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	31
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms S Given of Sparke Helmore Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 209 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	29 MAY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant 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 209 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE:	29 MAY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 27 February 2015 which dismissed an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).  The Tribunal’s decision was to affirm a decision of a delegate of the first respondent, then the Minister for Immigration and Citizenship (the Minister), not to grant the appellant a Protection (Class XA) visa. 

2. The appellant is a citizen of Bangladesh.  He left Bangladesh for Iran in August 2011.  He entered Australia on a tourist visa on 2 December 2011.  He claims that he fears returning to Bangladesh because he was beaten, threatened and falsely charged for murder by members of the Awami League owing to his involvement with the Bangladesh Nationalist Party (BNP).

3. He also says that his home was ransacked by the Awami League because of his involvement with the BNP.  The appellant claims he was one of the vice presidents or the

   
   

   co-president of the BNP Jatiatabadi Jubodal, Pabna District.  He claims that, if he returns to Bangladesh, the Awami League will kill him.  In his application for the protection visa, the appellant also claimed that the Awami League “will influence the Police and RAB to arrest me and kill me by crossfire”.

4. The Tribunal did not accept all the appellant’s claims.  The Tribunal said:

   28… the Tribunal does not accept the applicant was ever involved with the BNP in Bangladesh and suffered the harm in his country that he claims for the reasons that he claims, specifically because of any involvement or any activities with the BNP and because of any leadership role in any BNP organization. The Tribunal does not accept as true that the applicant left his country because of the harm that he claims or that he fears to return there because he fears persecution or harm in Bangladesh. It does not accept as true that the applicant faced any difficulty because of his, his family’s involvement or interest in BNP politics or will on his return. It finds the applicant’s testimony inconsistent, and implausible amounting to a fabrication for the reasons below. This leads the Tribunal to find that the applicant is not a witness of truth and was not targeted in Bangladesh in the manner he claims.

5. A critical plank in the Tribunal’s reasoning was its non-acceptance of certain evidence which the appellant placed before it.  As evidence in support of his claimed level of involvement in the BNP and the difficulties he faced as a result of that involvement, the appellant submitted a number of letters.  One letter was from Abu Obayeda Sheik Tuhin, the President of the BNP Jatiatabadi Jubodal, Pabna District Branch.  This letter was co-signed by someone purporting to be the General Secretary of the BNP Jatiatabadi Jubodal, Pabna District Branch.  The letter identified the appellant by name.  It also identified his father, his mother and their village address.  The letter stated that the appellant “is co-president of Bangladesh Jatiatabadi Jubodal Pabna District Branch.”  The letter stated that the appellant “is [an] active worker of our organization”.  The letter spoke of the appellant’s difficulties as a political activist.  It said that the appellant had left Bangladesh and, to the best of the authors’ knowledge, sheltered in Australia to save his life.

6. At the hearing before the Tribunal, the appellant gave evidence that he continues to speak to Sheik Tuhin.

7. The Tribunal sent the letter to the Department of Foreign Affairs and Trade (DFAT), with a request to determine its authenticity and whether the appellant is or was the co-president of the branch.  The Tribunal’s decision record records the following request and response:

   30.       …

   The RRT would be grateful if post could contact the offices of the Bangladesh Jatiatabadi Jubadal, Pabna District Branch, independently of any numbers shown on the letter, to determine the following:

   A.   The authenticity of the letter.

   Post spoke to Rana, President of Nationalist Chatrodal, Pabna District Branch over the telephone and also forwarded the reference letter to him by email.

   Rana took down the applicant’s details (his father’s name and village address) and offered to verify information about him with Jubodal members in Pabna by telephone. However he advised he was unable to sight the reference letter as it was difficult for him to access his email or provide an alternative fax number in his current location.

   B.   Whether the applicant is or was the co-president of the branch.

   After speaking to post Rana verified information on the applicant with three people from Jatiyatabadi Jubodal in Pabna District – Sheikh Tuhin, the current President of Jubodal Pabna District Branch (supposedly one of the referees of the letter); Harun Mollah, President of Shujanagar Upazilla Committee of Jubodal (as the applicant’s village falls under Shujanagar Upazilla); and Mannan Mollah, the previous Jubodal President of Shujanagar Upazilla, who held the position for six to eight years before a new committee was formed two years ago.

   Rana confirmed to post that none of the Jubodal members remembered the applicant to be co-president of the party. Tuhin recalled knowing someone named [appellant’s name] but could not confirm him to be a co-president of the party. Rana also said 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.

8. The Tribunal brought this information to the appellant’s attention, pursuant to s 424AA of the Migration Act 1958 (Cth). The Tribunal’s decision record sets out the way in which the Tribunal communicated to the appellant the significance of the information:

   31.In indicating the relevance of this information to the applicant under s.424AA the Tribunal noted that it may lead it to find that the applicant is not generally credible, not credible as to his involvement in BNP politics and was never involved in BNP politics in Bangladesh in the manner he claims, that he is not credible as to being [an officeholder] of the BNP Jatiatabadi Jubodal in Pabna District, the letters submitted outlining his political activities in Bangladesh are not genuine as he is not known and did not hold the position as claimed, and he is not credible as to being well known by [name] and continuing to talk to him. The Tribunal also indicated that the information may lead it to find he is not credible as to being targeted in Bangladesh because of his BNP political activities and will not be at risk of serious or significant harm were he to return to Bangladesh because of any involvement he had in BNP politics or BNP social activities. The Tribunal indicated that the fact he was not known by the people contacted as outlined in the information may led it to find he was never actively involved in BNP politics, despite Sheik Tuhin remembering someone called [appellant’s name].

   (Errors in original.)

9. The appellant sought, and was granted, one week to respond in writing.  The appellant responded in writing on about 6 August 2013 in which he repeated his claim that he held the position of co-president.  The Tribunal noted that, in his letter, the appellant stated that he wished to return to Bangladesh, but a false case had been made against him, his shop had been ransacked, and his house burnt.  The appellant requested more time within which to provide further information.  The Tribunal considered this request to be unreasonable in the circumstances and refused a further extension, for the following reasons recorded in its decision record:

   34.The Tribunal expects, as confirmed by Rana, President of Nationalist Chatrodal, Pabna District Branch that if the applicant held the position of Co-President/Vice President then one of the three Jubodal members that he verified with would have definitely remembered the applicant. This is particularly so as Sheik Tuhin is supposed to be the author of one of the supporting letters and the applicant claimed he speaks to him.

   35.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 Jubodal 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 or Vice President. While Sheik Tuhin recalled knowing someone named [appellant’s name], I expect that if the applicant was active in BNP politics either as Co-President or Vice President in the 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 and 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 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.

   36.On this significant evidence the Tribunal finds the applicant is completely lacking in credibility.

10. There was no challenge in the Federal Circuit Court in respect of the Tribunal’s refusal to grant the appellant further time to respond.

11. In its decision record, the Tribunal went on to consider other evidence, and to provide further reasons, for finding that the appellant lacked credibility. 

12. The Tribunal concluded:

    44.For all the above reasons, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. It follows it does not accept that the applicant was ever involved in the BNP as claimed, in any of the positions outlined or was known by BNP leaders and workers because of his social activities.

13. Ultimately, the Tribunal was not satisfied that the appellant is a person in respect of whom Australia has protection obligations, and affirmed the decision under review. 

    The Federal Circuit Court

14. The appellant’s application for judicial review filed in the Federal Circuit Court contains the following grounds:

    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 Mollar stated that they did not know, or know of, the applicant, or that the applicant was not known by or to Harun Mollah and Mannan 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.

    (Errors in original.)

15. The appellant was represented by counsel at the hearing before the Federal Circuit Court.

16. After summarising the appellant’s submissions made in support of its grounds for review, the primary judge made the following findings:

    52.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.

    53.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.

    54.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).

    55.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)

    56.       Accordingly, none of the grounds of the amended application are made out.

    The appeal

17. The notice of appeal filed in this Court contains only one ground of appeal, expressed as follows:

    That the Federal Circuit [Court] of Australia made an error in finding that there is no jurisdictional error.

18. Plainly, the notice of appeal asserts error, but does not identify error.

19. The appellant was not legally represented at the hearing of the appeal.  He was assisted by an interpreter.

20. I questioned the appellant about the notice of appeal and asked him to identify the error he alleged.  The appellant’s response was, effectively, to canvas the merits of his case.  He expressed surprise that he had been disbelieved by the Tribunal.  The appellant also sought to canvas the plight of political dissidents in Bangladesh. 

21. I informed the appellant that it was not the function of this Court, or that of the Federal Circuit Court, to review his claim on the merits.  I endeavoured to explain to him the Federal Circuit Court’s role in conducting judicial review of the Tribunal’s decision and the role of this Court in hearing appeals from the Federal Circuit Court on cases such as his.

22. When I again asked the appellant to identify the error alleged in his notice of appeal, he sought to advance a case that, when inquiries through DFAT were made, it was possible that his proper name had not been given.  When I asked the appellant why he had not advanced such a case previously, he provided two explanations.  With respect to the failure to advance such a case before the Tribunal, he explained that he had raised the issue in writing with the Tribunal but had not received any response.  The appellant was not able to produce this correspondence nor was he able to direct me to any page of the appeal book containing any such correspondence.  With respect to the failure to advance such a case before the Federal Circuit Court, he explained that he had been legally represented and, despite informing his legal representative of such a case, he was unsure whether his legal representative had in fact raised the issue before the primary judge.  

23. I am not satisfied that any such case was raised by the appellant before the Tribunal, given the Tribunal’s comprehensive reasons (which make no mention of any such case) and the fact that his application for judicial review raised no such case.  Had such a case been raised in the Federal Circuit Court, I would have expected the primary judge to have noted that case.  I am satisfied that no such case was raised in the Federal Circuit Court because no such case had been raised before the Tribunal.

24. Moreover, the appellant’s belated claim is implausible on the evidence before the Court.  The letter which the appellant produced to the Tribunal contained not only a reference to him by name but, as I have already noted, reference to his father’s name, his mother’s name, and their village address.  At no time has the appellant suggested that he is not accurately and fully identified in the letter.  With that in mind, I am unable to see how the appellant was not satisfactorily and appropriately identified for the purpose of the inquiry that was made.

25. In my view, the appellant’s response to my inquiry at the hearing of the appeal does not reveal jurisdictional error in the Tribunal’s decision or error on the part of the Federal Circuit Court.

26. The appellant also filed an affidavit with his notice of appeal.  Relevantly, the affidavit states:

    2.The Federal Circuit Court of Australia did not give any weight to the supporting documents which I lodged before the Court in support of my claims.

    3.The Federal Circuit Court of Australia failed to uphold my natural justice.

27. The solicitor appearing for the Minister submitted, and I accept, that the statements should only be admitted as submission.  With respect to the first submission made in the affidavit concerning the appellant’s supporting documents, it is clear that the documents before the Federal Circuit Court included an amended application, the Court Book (which has been completely reproduced within the Appeal Book in this appeal), an affidavit filed by the appellant dated 10 September 2009 annexing the decision record of the Tribunal, and the appellant’s submissions.  There is nothing before me which suggests that the primary judge did not have due regard to all the appellant’s supporting documents that were before her Honour.  This submission should be rejected.

1. With respect to the second submission made in the affidavit, the appellant was represented by counsel at the hearing below.  There is nothing before me that would indicate that the appellant was denied natural justice.  This submission should also be rejected.

2. The Minister has filed detailed written submissions which have greatly assisted my consideration of this appeal.

3. I am unable to see any error in the primary judge’s reasons or conclusions, which I have set out above.  I agree that the Tribunal’s decision is not affected by jurisdictional error in the ways in which the appellant alleged in his application for judicial review.  Nothing put to me by the appellant in the course of the hearing of the appeal identifies jurisdictional error in the Tribunal’s decision or appealable error on the part of the Federal Circuit Court. 

   Disposition

4. For these reasons, the appeal will be dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:        29 May 2015