SZTHK v Minister for Immigration and Border Protection
[2014] FCA 1227
•5 November 2014
FEDERAL COURT OF AUSTRALIA
SZTHK v Minister for Immigration and Border Protection [2014] FCA 1227
Citation: SZTHK v Minister for Immigration and Border Protection [2014] FCA 1227 Appeal from: SZTHK v Minister for Immigration & Anor [2014] FCCA 1352 Parties: SZTHK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 726 of 2014 Judge: WIGNEY J Date of judgment: 5 November 2014 Legislation: Migration Act 1958 (Cth) Date of hearing: 5 November 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 27 Appellant: In person with the assistance of an interpreter. Solicitor for the First Respondent: DLA Piper Second Respondent: The Second Respondent filed a submitting notice save as to costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 726 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTHK
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
5 November 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs as agreed or taxed.
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 726 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTHK
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE:
5 November 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
REVISED FROM TRANSCRIPT
The appellant, a Bangladeshi national, unsuccessfully applied to the Minister for Immigration and Border Protection (the Minister) for a protection visa under s 36 of the Migration Act 1958 (Cth) (the Act). He then applied for a review of that refusal decision in the Refugee Review Tribunal (the Tribunal). When that application failed, he sought judicial review of the Tribunal’s decision in the Federal Circuit Court. That application failed. The appellant now appeals that decision.
BACKGROUND
In short terms, the appellant claims that he meets the criteria for a protection visa because he has a well-founded fear of persecution in Bangladesh based on his political opinions and membership of a particular political party.
He claims that he was involved with the Bangladesh Nationalist Party (BNP), held various positions in that party during the 2008 parliamentary elections and worked for a candidate from a party alliance led by the BNP. He claims that he was attacked and beaten by members of the rival Awami League on at least two or three occasions and had a false case instigated against him. He also claims that false cases were lodged against him in relation to his garments business, that he was charged with offences by the police and that he paid bribes to the police to resolve those charges. The appellant says that he fears harm at the hands of “Awami goons”, government agents and the police if he returns to Bangladesh.
A delegate of the Minister refused the appellant’s visa application. The delegate found, in substance, that the appellant’s evidence and claims lacked credibility. The delegate was not satisfied that the appellant met the relevant visa criteria. The appellant then applied to the Tribunal for a review of the delegate’s decision.
TRIBUNAL PROCEEDINGS AND DECISION
The Tribunal convened a hearing and heard oral evidence and argument from the appellant. Unfortunately for the appellant, the Tribunal did not believe him and did not accept his claims.
The Tribunal gave essentially four reasons for rejecting the appellant’s claims.
First, the Tribunal reasoned that the appellant’s claim that he was a BNP member and activist was “unsubstantiated from any source” and consisted of no more than “a number of simple assertions”. It would appear that the appellant had no documentary evidence of his claims, nor did he call (or ask the Tribunal to call) any other witness or lead any other evidence.
Second, the Tribunal pointed to a number of inconsistencies between the appellant’s initial claims and the account he gave at the Tribunal hearing. The inconsistencies included inconsistencies relating to the position he held in the BNP, inconsistencies concerning the number of times or number of incidents during which he suffered harm and the number of times he was allegedly subjected to false cases.
Third, the Tribunal reasoned that the appellant’s explanation for why, having travelled to the United Kingdom in December 2011, he did not seek protection but, instead, returned to Bangladesh was implausible. The Tribunal also reasoned that it was implausible that, having supposedly been attacked again upon his return to Bangladesh, the appellant did not return to the United Kingdom given he had a multiple entry visa.
Fourth, the Tribunal also considered that the appellant gave an implausible explanation for the two month delay between the grant of his Australian visa and his travel to Australia.
In regard to these matters, the Tribunal found that it was not satisfied that the appellant was ever a member of the BNP or ever actively supported the party, was not satisfied that the appellant was ever harmed by the Awami League or the police and was not satisfied that he was ever subjected to false charges.
The end result was that the Tribunal found that the appellant did not satisfy the criteria for the grant of a protection visa. It, accordingly, affirmed the delegate’s refusal decision.
FEDERAL CIRCUIT COURT PROCEEDINGS AND JUDGMENT
In the Federal Circuit Court the appellant relied on the following three grounds as establishing jurisdictional error on the part of the Tribunal:
1. The second respondent made an error by irrelevant consideration.
2.The second respondent made an error not admitting that the applicant was subject to a false case.
3.The second respondent has not considered the applicant’s claim in accordance with the United Nation’s Convention.
The learned primary judge rejected each of these three grounds.
In relation to ground 1, at the hearing in the Federal Circuit Court the appellant submitted that the irrelevant consideration taken into account by the Tribunal was the Tribunal’s finding concerning the appellant’s explanation for not remaining in, or not returning to, the United Kingdom. The primary judge rejected this submission. His Honour found that the Tribunal’s finding in this regard was not an irrelevant consideration. That was because the appellant’s inability to plausibly explain why, if he feared persecution in Bangladesh, he did not remain in or return to the United Kingdom, could rationally affect the assessment of the probability of the truthfulness of the appellant’s claim that he feared persecution in Bangladesh.
In relation to ground 2, the primary judge found that this ground, and the appellant’s submission in support of it, amounted to nothing more than a disagreement with the Tribunal’s decision to reject his claim that he was subject to a false case. His Honour held that this finding, based as it was on, amongst other things, inconsistencies in the appellant’s evidence, was reasonably open to the Tribunal.
In relation to ground 3, the primary judge found that the Tribunal’s reasons clearly indicate that the Tribunal did correctly consider the appellant’s claim in accordance with the United Nations Refugee Convention. The appellant’s submissions in the Federal Circuit Court did not reveal how he said that the Tribunal did not consider his claim in accordance with the Refugee Convention. His submissions simply dealt with the merits of the decision.
The primary judge concluded that the appellant had failed to demonstrate any jurisdictional error on the part of the Tribunal. The appellant’s application was, accordingly, dismissed with costs.
APPEAL GROUNDS AND SUBMISSIONS
The sole ground of appeal to this Court is as follows:
That the Federal Circuit Court made an error in finding that there is no jurisdictional error.
No particulars of the alleged error are provided in the notice of appeal. No written submissions were filed by the appellant.
The oral submissions advanced by the appellant at the hearing did not advance his case. He did not point to, let alone seek to demonstrate, any particular appealable error on the part of the primary judge. Nor did he point to, let alone seek to demonstrate, any error on the part of the Tribunal that could constitute a jurisdictional error. He simply submitted that neither the delegate nor the Tribunal believed the evidence or information he put before them. He maintained, however, that what he told the Tribunal was the truth. He submits that he is under threat if he returns to Bangladesh and fears for his safety if returned.
DISPOSITION OF APPEAL
The primary judge was correct to reject each of the appellant’s grounds of review and was correct to find that no jurisdictional error on the part of the Tribunal had been demonstrated by the appellant.
It was open to the Tribunal to reject the appellant’s claims and evidence for the reasons it gave. Issues concerning the credibility and plausibility of evidence, and matters that go to the credit of an applicant’s claims and evidence, are matters for the Tribunal to decide. The reasons given by the Tribunal for rejecting the appellant’s claims and evidence are reasonable and logical and disclose no error, let alone an error that goes to the exercise of the Tribunal’s jurisdiction. The appellant’s arguments and submissions, both before the Federal Circuit Court and on appeal, have no merit and rise no higher than disagreement with the merits of the Tribunal’s decision.
Whilst one can appreciate that the appellant may feel aggrieved because he was not believed by the Tribunal, and that he maintains that what he told the Tribunal was the truth, this does not demonstrate error on the part of the Tribunal. Nor has the appellant pointed to any error made by the Federal Circuit Court in deciding his judicial review application. It is not for this Court to intrude upon the merits of the Tribunal’s decision in relation to factual findings made on credibility grounds.
As no error has been demonstrated, the appeal must be dismissed.
The Minister seeks an order that the unsuccessful appellant pay his costs as agreed or taxed. The appellant has not advanced any reasons why such an order should not be made.
Accordingly, the appeal is dismissed and the appellant is ordered to pay the Minister’s costs as agreed or taxed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 14 November 2014
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