SZTHH v Minister for Immigration and Border Protection

[2015] FCA 520

FEDERAL COURT OF AUSTRALIA

SZTHH v Minister for Immigration and Border Protection [2015] FCA 520

Citation:	SZTHH v Minister for Immigration and Border Protection [2015] FCA 520
Appeal from:	SZTHH v Minister for Immigration [2015] FCCA 300
Parties:	SZTHH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 181 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)
Cases cited:	Abebe v Commonwealth (1999) 197 CLR 510 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Date of hearing:	14 May 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	41
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Ms B Tronson
Solicitor for the First Respondent:	DLA Piper Australia
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 181 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTHH
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 181 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTHH
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 12 February 2015 which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).  The decision of the Tribunal was to affirm the 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 Tribunal accepted that the appellant was a citizen of Bangladesh.  It also accepted that the appellant lived in Daru, Papua New Guinea from January 2001 until November 2011.  The appellant claimed that he had arrived in Australia on 22 November 2011.

   Background

3. The appellant’s claim for protection was based on his asserted membership of the Purba Bangla Communist Party (PBCP) in Bangladesh.  In his application for the protection visa, the appellant claimed that he feared returning to Bangladesh because the government did not like the activities of the PBCP and, as the Tribunal recorded, that they would “arrest him, kill him in crossfire or add his name to criminal cases”.  However, at a departmental interview, and before the Tribunal, this claim changed.  As the Tribunal recorded in its decision record at [18]:

   18.… at the Tribunal hearing (and consistently at the Departmental interview) he claimed that in Bangladesh, and after leaving Bangladesh, the people who had harmed him and who he feared the most were members of his own party who had forcibly recruited him, tortured him, murdered his cousin, caused the death of his father and threatened to kill him if he left the party or returned to Bangladesh. These are very significant claims which were not raised in the applicant’s written claims.

4. The Minister’s delegate did not accept the appellant’s claims.  The delegate said:

   I am not satisfied that the applicant has provided an open and honest account of his identity, immigration history, and political activities in Bangladesh.  Having carefully considered the applicant’s claims and testimony at interview, I do not accept that the applicant is a credible witness and do not accept that he was a member of the Purba Bangla Communist Party, or that he was forced to flee Bangladesh because of his political opinion.  For the reasons outlined below, I am of the opinion that the applicant has fabricated key claims and omitted relevant information from his Protection Visa application and in an attempt to mislead the Department and manufacture protection claims: …

5. In the course of his reasons, the delegate gave a detailed explanation for concluding that the appellant had no involvement with the PBCP.  Specifically,  the delegate found:

   For the reasons outlined above, I do not accept that the applicant was a member of the Purba Bangla Communist Party.  As such, I do not accept that he would be targeted by the Bangladesh authorities or leaders of the Purba Bangla Communist Party if he returns to Bangladesh.  Consequently, I do not find that he faces a real chance of being subjected to serious harm on the basis of his political opinion.

6. The delegate also said:

   … I have assessed the applicant’s claims and found that the applicant does not have a well founded fear that he will be persecuted for a Refugee Convention reason in Bangladesh.  I put weight on the following issues/findings:

   •I do not accept that the applicant was an active member of the Purba Bangla Communist Party, or that he has previously experienced any harm or mistreatment in Bangladesh due to his political opinion.

   •Consequently, I do not accept that he has a political profile that would cause him to experience the harm that he claims to fear.

   •I find that the applicant’s evidence has been fabricated to convince the Department that he should be a recipient of a Protection visa and for no other reason.

7. The appellant’s evidence before the delegate included at least two letters.  One was a copy of an untranslated letter, purportedly from the appellant’s brother.  The other was a letter from a person purportedly called Shain Uddin.  I mention these letters for two reasons.  First, they assumed importance in the appellant’s application for judicial review in the Federal Circuit Court.  Secondly, as part of the evidence before the delegate, there is no reason to exclude them from the delegate’s general finding that the appellant’s evidence had been fabricated.  The importance of that matter lies in the fact that, at the time of the hearing before the Tribunal, the appellant was on clear notice that his claim for protection, based on his membership of the PBCP, and the persecution he alleged he had suffered by reason of that membership, had been rejected on the basis that the appellant was not a witness of truth and had fabricated his evidence in support of his claim for protection.

8. There is another letter to which I should refer.  It is a letter purportedly written by a representative of the Elangi Communist Party.  The hearing before the primary judge apparently proceeded on the assumption that this letter was before the delegate, as part of the appellant’s evidence.  When I mentioned the matter at the hearing of this appeal, the appellant confirmed that this letter was before the delegate, not just before the Tribunal.  However, on further examination of the papers, I hold some reservation that this is correct.  The letter is apparently dated 26 August 2012.  The appellant’s interview with the delegate was on 17 July 2012.  The delegate’s written decision is dated 27 July 2012.  If the letter is correctly dated, it could not have formed part of the evidence before the delegate.  However, as I will come to explain, I do not think that this discrepancy needs to be resolved so far as the disposition of this appeal is concerned.

9. The appellant appeared before the Tribunal on 19 August 2013 to give evidence and to present arguments.  He used a Bengali interpreter.  The Tribunal’s decision record states (at [8]) that, after having spoken at length with the appellant during the Tribunal hearing, the Tribunal concluded that the appellant was not a truthful or reliable witness.  The Tribunal found its concerns to be so significant that it was not satisfied that any of the appellant’s claims were credible. The Tribunal gave detailed reasons for coming to this conclusion: see [9]-[28] of the decision record.

10. The Tribunal said (at [28]):

    28.In light of the above concerns the Tribunal is not satisfied that the applicant holds a genuine fear about returning to Bangladesh. It is not satisfied that he is or was a member of the PBCP, that members of the PBCP forcibly recruited or tortured him, that they killed his cousin and caused the death of his father, that they have been searching his house or that they have threatened to kill him. It is not satisfied that the applicant is of adverse interest to the Bangladeshi government or other political parties. Therefore there is no credible evidence before the Tribunal to suggest that there is a real chance that the applicant would be persecuted if he was to return to Bangladesh now or in the reasonably foreseeable future.

11. At [29] of its decision record, the Tribunal specifically noted that it had considered the three letters to which I have referred.  It noted that none of the letters contained contact details which would enable the letters to be verified.  The Tribunal noted that the letter purportedly from the representative of the Elangi Communist Party was not written on party letterhead.  Further, the author of the letter was not named.  The Tribunal did not accept that the letter demonstrated the appellant’s involvement with the PBCP and said that it placed little weight on it as evidence. 

12. The Tribunal also commented on the letter purportedly from the appellant’s brother.  The Tribunal noted that the letter was written in Bengali and that the other letters were written in English.  When the Tribunal raised this matter with the appellant, the appellant said that his brother’s letter was written in Bengali because, had it been written in English, that fact would have shown that the letter had been fabricated.  The Tribunal then queried why, in that case, the other two letters were written in English.  The appellant explained that these letters were different, because they were not from his family.  The Tribunal did not accept that explanation.  It concluded that the letters did not overcome its “significant concerns” referred to earlier in its reasons. 

13. Ultimately, the Tribunal concluded that the appellant was not a person in respect of whom Australia has protection obligations.

14. There is one further matter which I should mention at this stage.  A transcript of the hearing before the Tribunal was in evidence before the Federal Circuit Court.  At the conclusion of the hearing, the Tribunal asked the appellant if there was anything he wished to say.  The following response to that question was given through the interpreter, who said:

    Okay.  No, he doesn’t have anything else to add except for the fact that in two days of session he has understood all your questions and it was clear to him what he was being asked and what  he had to say, but during his interview with the department it was not this clear.  And he is very happy with the session today and would like to thank you if you can help him.

    The application before the Federal Circuit Court

15. The appellant’s application for judicial review contained the following grounds:

    1.In contravention of s 425 of the Migration Act 1958 (Cth), the Tribunal failed to put the following issues to the applicant and give him an opportunity to comment:

    a.In para 29 of its decision, the Tribunal referred to its consideration of three letters of support provided by the applicant.  The contents of at least one of those letters concerned the applicant’s involvement in the Purba Bangla Communist Party.  The Tribunal said that “none of these letters contain contact details in order for them to be verified”.  The Tribunal suggested that it would have taken steps to verify the letters and the provision of contact details would have enabled it to undertake those steps.  The Tribunal failed to put to the applicant that the absence of contact details on the letters would prevent them from being verified by the Tribunal.  The Tribunal failed to give the applicant an opportunity to obtain and furnish contact details of the authors of the letters so that they could be verified by the Tribunal.

    b.In para 29 of its decision, one reason the Tribunal gave little or no weight to the letters of support provided by the applicant and otherwise found that they “do not overcome the significant concerns” that had been outlined earlier in the reasons was the absence of contact details on the letters.  The Tribunal failed to put to the applicant that it would place little or no weight on the letters due to the absence of contact details.

    For one or both of these reasons, the Tribunal’s decision is infected by jurisdictional error because of a denial of procedural fairness or a failure to comply with s 425

    (Errors in original.)

16. At the hearing before the primary judge, the appellant was represented by counsel. 

17. The primary judge saw the appellant’s application as advancing two complaints.  The first was that the Tribunal did not raise with the appellant the fact that the letters proffered by him could not be verified in the absence of contact details.  The second was that the Tribunal did not raise with the appellant its view that the letters should be given no or little weight.

18. At this point I should note that the second complaint, as raised in the appellant’s application, does not accurately reflect the Tribunal’s findings.  First, the Tribunal said that it placed little weight (not no weight) on the letter purportedly from the representative of the Elangi Communist Party.  The Tribunal apparently came to this conclusion because the letter was not written on party letterhead and because the author of the letter was not named.  Secondly, the Tribunal did not state that it placed no or little weight on the other two letters.  Rather, it found that these letters (together with the other letter) “do not overcome the significant concerns of the Tribunal”.  That said, it seems reasonable to infer that the fact that the letters could not be verified was a reason for coming to that conclusion. 

19. The primary judge noted (at [23]) that the case was one where the Tribunal had made fundamental and extensive adverse credit findings against the appellant.  Given the delegate’s finding that the appellant’s evidence had been fabricated, the primary judge found (at [24]) that the appellant must have been on notice that the entirety of his claims was subject to question.  The primary judge specifically referred to the three letters which, he said, were “subject to serious question”. 

20. The primary judge rejected (at [25]) the appellant’s contention that, because the letters could not be verified, the Tribunal came under a duty to inquire as to the contact details.  Implicit in that rejection is also a rejection of the contention that the Tribunal was under a duty to raise the absence of contact details with the appellant and to afford the appellant the opportunity to provide contact details. 

21. As to the question of weight, the primary judge accepted (at [25]) the Minister’s submissions that the allocation of weight was a matter for the Tribunal.  The primary judge does not appear to have separately addressed the appellant’s contention that the Tribunal was under a duty to inform the appellant that it would place little or no weight on the letters because of the absence of contact details. 

22. The primary judge concluded that the appellant had not demonstrated jurisdictional error in the Tribunal’s decision and dismissed the application, with costs.

    The appeal

23. The notice of appeal essentially repeats the grounds of the application filed in the Federal Circuit Court.  It adds, in relation to each ground, the allegation that the Federal Circuit Court erred in finding that the Tribunal did not fall into jurisdictional error.

24. Although the appellant was represented by counsel at the hearing before the Federal Circuit Court, he appeared unrepresented at the hearing of this appeal.  He was assisted by an interpreter.

25. The appellant filed written submissions.  The submissions are somewhat difficult to follow.  Nevertheless, in relation to the Tribunal’s observation concerning the absence of contact details in the letters, the appellant appears to advance three matters which, he says, constitute error on the part of the primary judge.

26. First, as an apparent justification for the absence of contact details in the letters, the appellant contends that his “party members and comrades” are not “visible” and “have been hiding since its inception (the Party)”.  This is not a matter raised before the primary judge.  Even so, it does not bespeak jurisdictional error on the part of the Tribunal.  Still less does it bespeak appealable error in the Federal Circuit Court judgment.

27. Secondly, the appellant contends that the letters were “the only and overwhelming evidence relating to the appellant’s claim” and that “the Tribunal was under an obligation to have due respect to it before discharging it …”  This appears to be a submission that the Tribunal failed to have regard to the letters or, perhaps, that the Tribunal failed to give them sufficient weight.  Neither submission can be sustained.  The Tribunal plainly had regard to the letters but, for the reasons it gave, was not persuaded that they were of sufficient probative value to overcome what it found to be, overall, the unreliability of the appellant’s evidence.

28. Thirdly, the appellant contends that the Tribunal failed to consider an integer of his claim.  In the context of the written submissions, this contention appears to be a repetition of the appellant’s contention that the Tribunal failed to take the letters into account.  Nevertheless, for the avoidance of doubt, I asked the appellant at the hearing to identify for me the separate claim which he says had not been taken into account by the Tribunal.  The appellant responded by saying that he had doubts that his evidence before the Tribunal had been correctly related by the interpreter then assisting him because the Tribunal had not accepted his claims. 

29. This appears to be the first time that any suggestion about difficulties of interpretation has been raised.  This complaint was not expressed in the appellant’s written submissions.  It was not a ground of his application for judicial review or even raised in argument before the Federal Circuit Court, even though the appellant was represented by counsel.  What is more, this complaint is completely inconsistent with the confidence expressed by the appellant, at the time of the Tribunal hearing, in the quality and accuracy of the interpreting services provided to him:  see [14] above.

30. In my view, it is far too late for the appellant to raise this complaint now.  Apart from the lateness of the complaint, and the fact that it is completely inconsistent with the appellant’s position at the hearing before the Tribunal, it is wholly speculative in nature, based only on the appellant’s belief that, because his claims were not accepted as truthful, the reason must lie in the quality of interpreting services provided to him.  In the circumstances I have described, that allegation is untenable.

1. I now turn to consider the primary judge’s reasons. 

2. In my respectful view, the primary judge was correct to observe that, following the delegate’s decision, the appellant would have been on notice that the entirety of his claim was subject to question, including that the appellant had fabricated his evidence.  There is no doubt that two of the letters relied upon by the appellant before the Tribunal were, as the primary judge put it, “subject to serious question”.  Unlike the primary judge, I will proceed on the assumption that the letter purportedly from the representative of the Elangi Communist Party was not before the delegate and was only in evidence before the Tribunal.  However, even proceeding on that assumption, I do not think that this leads to any different conclusion on the question of whether jurisdictional error has been established.

3. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the High Court observed (at [36]):

   36It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

4. Here, the reasons given by the delegate for refusing to grant the appellant’s application for a protection visa identified, as a central issue, the question of whether the appellant was a member of the PBCP and whether, by reason of that membership, the appellant suffered persecution.  Before the Tribunal, the appellant relied on the three letters to support his claim in that regard.  The Tribunal’s observation that none of the letters contained details in order for them to be verified was simply a statement of uncontroversial fact.  There was nothing on the face of the letters that would enable the Tribunal to verify them. 

5. Although proceedings before the Tribunal have an inquisitorial (as opposed to adversarial) character, no general duty is imposed on the Tribunal to undertake its own inquiries in addition to information provided to it by an applicant:  Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [43]; Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [1]. The Tribunal’s statutory function is to “review” the decision before it. Neither s 425 nor any other provision of Div 4 of Pt 7 of the Migration Act 1958 (Cth) (the Act) obliges the Tribunal to embark on a

   
   

   fact-finding mission.  Indeed, s 426 provides that, even if an applicant requests that the Tribunal take evidence from a witness, it is not required to obtain such evidence. 

6. In SZIAI, the plurality in the High Court observed (at [25]):

   25Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. …

7. The Tribunal was not under a general duty to undertake inquiries to support the appellant’s claims.  The fact that the letters did not contain contact details did not thereupon impose any special duty on the Tribunal to ascertain those details, including by specific inquiry directed to the appellant.  It was for the appellant to advance whatever evidence he wished to put before the Tribunal in support of his claims—knowing, here, that his claims of involvement in the PBCP and the persecution he allegedly suffered as a result of that involvement had been found by the delegate to be not credible and fabricated: Abebe v Commonwealth (1999) 197 CLR 510 at [187].

8. Further, the Tribunal plainly had regard to the letters.  In the case of the letter purportedly from the representative of the Elangi Communist Party, the Tribunal pointed to two matters which led it to conclude that the letter was of little weight and did not, without more, demonstrate the appellant’s involvement in the PBCP.  This conclusion was open to the Tribunal.  The weight it placed on the letter was a matter for it.  The Tribunal was not obliged to give the appellant a running commentary on its assessment of the evidence, or of its reasoning process, before reaching a final decision: SZBEL at [48], quoting, with approval, Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369. Procedural fairness, as required under Div 4 of Pt 7 of the Act, did not oblige the Tribunal to put to the appellant the obvious fact that, without contact details, the letters could not be independently verified, or to inform the appellant, before its final decision, of the weight that it proposed to give to the letters as evidence in support of the appellant’s claims.

9. In his second ground of appeal, the appellant contends that the Tribunal committed a jurisdictional error by giving little or no weight to the letters and by failing to put to the appellant that it would place little or no weight on the letters due to the absence of contact details.  In his written submissions in support of that ground, the appellant submitted that “the Tribunal committed jurisdictional error because of its failure to deal with a matter of relevance sufficiently or adequately in the particular circumstances of this case, where [the] Bangladesh government is violating all sorts of human rights”.  The appellant further submitted that the Tribunal had not properly turned its mind to the letters and did not properly assess or “give weight or verify the documents”.  These submissions are really an iteration of some of the submissions advanced by the appellant in support of the first ground of appeal and are answered by the matters discussed in [35]-[38] above.   

10. In my view, the primary judge did not err in concluding that the appellant had not demonstrated jurisdictional error in the Tribunal’s decision. 

    Disposition

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

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:        29 May 2015