SZTHP v Minister for Immigration

[2014] FCCA 2242

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHP v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2242

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – no arguable case for the relief sought – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.36, 91R, 414, 476

SZTBV v Minister for Immigration & Anor [2014] FCCA 2106
NAHI vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40; (2009) 238 CLR 642
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

Applicant: SZTHP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2252 of 2013

Judgment of: Judge Nicholls

Hearing date: 2 April 2014

Date of Last Submission: 2 April 2014

Delivered at: Sydney

Delivered on: 29 September 2014

REPRESENTATION

Applicant: In person

Appearing for the Respondents: Ms A Carr

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application made on 23 September 2013 and amended on 7 January 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2252 of 2013

SZTHP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 September 2013 and amended on 7 January 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 August 2013 which affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.

Background

1. The applicant is a citizen of Bangladesh who arrived in Australia

   
   

   on 13 March 2012 as, what he described, as a “ship deserter”

   
   

   (the Court Book in evidence before the Court – “CB” – CB 14). He applied for a protection visa on 12 April 2012 (CB 1 to CB 26). A number of documents were provided by the applicant in support of his application (CB 27 to CB 81).

2. The applicant’s claims to protection were that he feared “persecution for my political believe” from his political opponents (CB 18), including being subject to “false charges” and that he was in fear of “assassination” (CB 19).

3. The delegate interviewed the applicant on 27 June 2012 (CB 92). The delegate subsequently refused the grant of the visa on 13 July 2012 (CB 82 to CB 107). Essentially, the delegate was “not satisfied that the applicant ha[d] provided an open and honest account of his political activities in Bangladesh” (CB 93.8). The delegate concluded that the applicant had fabricated and manufactured his claims (CB 93).

Tribunal

1. The applicant applied for review to the Tribunal on 17 August 2012 (CB 108 to CB 113). He attended a hearing before the Tribunal on 18 July 2013 (CB 143 and CB 147). At the hearing he provided further documents to the Tribunal (CB 150 to CB 186). The Tribunal’s account of the hearing is set out in its decision record ([13] at CB 192 to [39] at CB 196).

2. The applicant gave evidence about his political activities in Bangladesh. These included speeches critical of the government, claimed attacks on him, the vandalism of his shop in Bangladesh and that a false allegation had been made against him involving a shooting over a marital dispute. Further, he claimed he had participated in political activities in Australia.

3. The Tribunal reports that it put to the applicant that he had not included in his application information about his involvement with the Bangladesh Nationalist Party (“BNP”), the positions he claimed to have held, the vandalism of his shop, the assault, the false allegation and visits by police to his house ([29] at CB 195).

4. The Tribunal saw the initial, and key, issue in the matter before it as being whether the applicant was a credible witness ([40] at CB 196). The Tribunal found he was not a credible witness and, therefore, did not accept his claims ([44] at CB 196). The Tribunal gave comprehensive reasons for this ([46] – [51] at CB 196 to CB 199). In its analysis the Tribunal found the applicant’s claims to have been, variously, fabricated due to omissions, the failure to provide “specifics”, his lack of awareness of key political events while claiming to have been actively involved in politics, and his “completely unconvincing” evidence, including his explanations for difficulties put to him by the Tribunal about his claims.

5. The Tribunal gave little weight to the various documents provided by the applicant, relying on country information about the prevalence of document fraud in migration matters in Bangladesh. Further, the Tribunal had separate and specific concerns about particular documents. These included letters from a political party in Bangladesh and from a member of parliament, and a medical certificate which the Tribunal found were not directed to the applicant’s specific concerns but used generic language not specifically related to him. Further, that the letters referred, in part, to matters not raised by the applicant before the Tribunal ([52] at CB 199 to CB 200).

6. The Tribunal accepted that the applicant had taken part in a number of protests in Australia, and accepted the various documents that he had provided in support of this claim. However, the Tribunal had found the applicant’s other evidence to be not credible, and that key aspects of his claims were fabricated. In this light, therefore, it disregarded this conduct because it found he engaged in this conduct for the sole purpose of bolstering his claims ([53] at CB 200).

7. The Tribunal then turned to consider the criteria at ss.36(2)(a) and (aa) of the Act in light of its findings of fact. In relation to a well-founded fear of persecution (s.36(2)(a) of the Act) the Tribunal found that it was not satisfied that the applicant met this criterion. It gave reasons for this consistent with, and derived from, its findings of fact ([54] at CB 200 to [56] at CB 201). The Tribunal also found that it did not accept there was a real risk of significant harm if the applicant were to return to Bangladesh. This too, was based on its earlier findings of fact

   
   

   ([58] – [60] at CB 201).

8. It is important to note, particularly in light of one of the applicant’s complaints before the Court, that the Tribunal specifically addressed, in its consideration of complementary protection, the applicant’s conduct in Australia which it accepted had occurred. Nonetheless, the Tribunal did not accept there was a real risk of significant harm for this reason ([59] at CB 201).

Before the Court

1. At the first Court date in this matter the applicant appeared in person. He was assisted by an interpreter in the Bengali language. The application before the Court at that time was expressed in general terms and lacked particularity.

2. Both by way of his formal “Response” filed in these proceedings and from what was said by his representative at the first Court date, the Minister made clear his position that the application did not raise an arguable case for the relief sought.

3. I made orders giving the applicant the opportunity to file an amended application and any evidence by way of affidavit. I set the matter down for mention on 2 April 2014. The Minister made clear that if the application remained without amendment, or in circumstances where any amended application did not raise an arguable case for the relief sought the Minister would press for an immediate hearing pursuant

   
   

   to r.44.12 of the Federal Circuit Court Rules 2001 (Cth)

   
   

   (“the FCC Rules”).

4. On 2 April 2014 the applicant again appeared in person. He was assisted by an interpreter in the Bengali language. The applicant had filed an amended application on 7 January 2014. It was in the following terms:

   “The Refugee Review Tribunal failed to assess my persecution on the basis of my political persecution in the following grounds:

   Particulars:

   
   

   The Tribunal indicated country information which suggested that there is a widespread practice in Bangladesh of obtaining fraudulent documents for the purpose of migration. The Tribunal put little weight to the various documents which I provided to it because I am a Bangladeshi and fraudulent documents are available in Bangladesh.

   However I requested the Tribunal to verify the documents those I submitted but the Tribunal did not take any initiative to verify the documents and even did not give any weight to the documents.

   
   
   

   Accordingly I submit that the Tribunal made its decision on assumption and I denied natural justice.

   Particulars:

   
   

   The Tribunal made a comment that my engagement with the Australian BNP was for the purpose of strengthening my claim to be a refugee.

   However the Tribunal accepted my involvement with the Chatra Dal and the members of family’s involvement with the BNP especially my father’s involvement with the BNP. The Tribunal failed to assess the possible chances of my persecution because of my father and my involvement with BNP if I force to return to Bangladesh.

   Particulars:

   
   

   The Tribunal failed to assess my application under complimentary protection.

   Deserting ship itself is a criminal offence and the consequence is fine and jail.

   I am in fear that I will be persecuted if I return to Bangladesh as I deserted ship without the Master’s consent.

   However the Tribunal failed to take into account the possible persecution which I will face by deserting ship.”

   [Errors in the original.]

5. Notwithstanding the amendment the Minister pressed for a hearing pursuant to r.44.12 of the FCC Rules. The Minister’s position was that the grounds, as amended, still did not raise an arguable case for the relief sought. I agreed with the Minister that the matter should proceed to a hearing pursuant to r.44.12 of the FCC Rules so as to test the Minister’s position

The Issues

1. The issue before the Court is whether the application raises an arguable case for the relief sought. If the Court cannot be satisfied that an arguable case is raised against the respondent the application should be dismissed. I note that the Court’s power should be exercised with great caution, as I stated in SZTBV v Minister for Immigration & Anor [2014] FCCA 2106 at [47]:

   “…Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot success (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]– [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).”

The Hearing

1. At the hearing before the Court, the applicant appeared in person and was assisted by an interpreter in the Bengali language. Ms A Carr appeared for the Minister. Before the Court, the applicant made the following complaints:

   1)The Tribunal found that the documents he had provided in support of his claims were “forged”. He asked the Tribunal to “check” his documents, given that its concern was speculative (in context, as it related to his particular documents). The Tribunal’s approach meant he did not receive “justice” (this was relevant to particular “one” of the ground of the amended application).

   2)He claimed before the Tribunal that he had been involved with the BNP and its student wing (the Tribunal accepted that he had some affiliation at [46] of CB 197). The Tribunal did not accept that he had been vice president of the youth wing of the BNP. The applicant complained that it was plausible that he had become vice president given his father’s involvement with the BNP (this was relevant to particular “two” of the ground of the amended application).

   3)The Tribunal found that his involvement with the BNP in Australia was for the purpose of strengthening his claim to be a refugee. The applicant referred to a letter from the President of the BNP in Australia (see CB 168). He complained that the Tribunal found this letter to be “false” (relevant to particular “two” of the ground of the amended application).

   4)The Tribunal did not “look into” why he came to Australia by ship, which was to “protect” himself.

   5)He would face gaol and a fine if he returned to Bangladesh as a “ship’s deserter”.

   6)Although his “home” area was dominated by the BNP, the previous month a local person involved in politics had been shot. The leader of the BNP had recently been placed under “house arrest”.

Consideration

1. The sole ground of the application, as amended, asserts that the Tribunal failed to assess his “persecution” based on the political persecution that he claimed had occurred. Three particulars are given in support.

2. There appear to be two parts to the first particular. In the first part, the applicant complains that the Tribunal gave little weight to the various documents he submitted because it relied on country information that there was widespread document fraud in Bangladesh.

3. It is the case that the Tribunal did assign little weight to his documents and did rely, in part, on country information as to the prevalence of fraudulent documents in Bangladesh. This, however, must be seen in context of the Tribunal’s reasoning as a whole.

4. First, the Tribunal made a comprehensive adverse credibility finding against the applicant without any reference to this country information. The reliance on the country information was reasonably available to the Tribunal as an explanation as to why it assigned little weight to his documents. This is plainly not a case where the Tribunal found that an otherwise credible set of claims should be rejected because the documents presented were documents from a country where document fraud was prevalent.

5. Second, the assignment of such weight is for the Tribunal to make and is within the exercise of its jurisdiction (NAHI vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).

6. Third, the Tribunal’s decision did specifically address and consider the central documents that were said to directly relate to the applicant’s claim of political involvement in Bangladesh. The Tribunal gave reasons as to why it had concerns about the documents, probative of what was said in the documents and the applicant’s evidence to it.  

7. As stated above, this is not a case where the Tribunal rejected the applicant’s corroborative documentary evidence merely on the basis of country information. While the Tribunal took that country information into account, it explained that “…in light of the information each document would be considered carefully in light of its context of his evidence rather than accepting them on face value” ([30] at CB 195).  

8. This finding was reasonably open to the Tribunal on the basis of the country information before it, which it considered was relevant to its consideration of the applicant’s claims. The Tribunal proceeded to assess the relevant documents as it said, in context (see, for example, [52] at CB 199 to CB 200). No arguable case is revealed here.

9. I note that the applicant’s submission before the Court varied in at least one important way to what was in particular “one”. Before the Court, the applicant claimed that the Tribunal found his documents were “forged”. The Tribunal made no such finding, as referred to above. In this respect, again, no arguable case is raised for the relief sought.

10. The second complaint in the first particular is that the applicant said he asked the Tribunal to “verify” the documents, but the Tribunal did not do so. The Tribunal’s account of the hearing supports the applicant’s claim that he asked the Tribunal to “verify” his documents (see at [52] at CB 199 to 200). However, the Tribunal’s record also shows that the Tribunal considered that request and gave reasons for not agreeing to it (see at [52] at CB 199 to CB 200).

11. To the extent that the applicant’s request to the Tribunal that it “verify” his documents meant that he requested it to investigate or make some inquiry of the authors, there is no general duty on the Tribunal to conduct any such inquiry (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12).

12. As the High Court explained in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (“SZIAI”), it may be that a failure to make an inquiry in some circumstances could be seen as a failure to review the delegate’s decision as the Tribunal is obliged to do pursuant to s.414 of the Act. However, that would require any such failure to be in relation to “…an obvious inquiry about a critical fact, the existence of which is easily ascertained” that could “supply a sufficient link to the outcome to constitute a failure to review” (SZIAI at [25]).

13. The applicant has not provided evidence to the Court, nor can I otherwise see in the circumstances presented, that the various elements referred to by the High Court are present in the applicant’s case. I note the Tribunal’s reasoning that it would not be practical to undertake such an inquiry in the circumstances and, in any event, it could not be confident of the outcome ([52] at CB 200).

14. In all, particular “one” and the first complaint before the Court do not raise an arguable case for the relief sought.

15. The focus of particular two is not clear. The applicant refers to the Tribunal’s finding that his conduct in Australia was for the purpose of strengthening his refugee claims. If the intention of this particular is to challenge the Tribunal’s findings in relation to its assertion of s.91R(3) of the Act, then the Tribunal’s findings that informed its application of s.91R(3) of the Act were consistent with relevant authority (Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40; (2009) 238 CLR 642).

16. The ground also states that the Tribunal accepted both his and his father’s involvement in Bangladesh with political groups, in particular with the BNP. The applicant complains that the Tribunal failed to assess the chance of persecution in light of this.

17. The Tribunal accepted that the applicant had some affiliation with some political groups in Bangladesh, although it rejected that he had held any position in these groups as he claimed. It also accepted that his father supported the BNP (see [55] at CB 200 to CB 201).

18. However, the Tribunal gave comprehensive reasons, probative of the evidence before it, as to why, in light of all of its other findings in relation to the applicant’s claims, this would not lead to a well-founded fear of persecution (see [55] at CB 200 to CB 201). The applicant’s particular really seeks to take issue with the Tribunal’s findings of fact and the conclusion arising from these findings. In the circumstances, this does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). It does not raise an arguable case for the relief sought.

1. Nor is any arguable case raised by the applicant’s second complaint before the Court. The applicant may regard his claim in relation to having been the vice president of the youth wing of the BNP as plausible. However, given that the Tribunal’s relevant findings were reasonably open to it, the applicant’s complaint can only be seen as a request for the Court to intervene and engage in impermissible merits review.

2. Particular “three” asserts that the Tribunal did not assess his application under complementary protection. There are a number of difficulties with this particular.

3. First, the ground itself to which the particular purportedly seeks to give explanation, asserts a failure to assess “persecution”. This plainly can only refer to the Refugees Convention and s.36(2)(a) of the Act. “Complementary protection” derives separately from s.36(2)(aa) of the Act. In any event, as an unrepresented applicant it is understandable that the applicant may not understand the distinction here.

4. Second, the assertion that the Tribunal failed to assess his application under complementary protection must be rejected. The Tribunal plainly considered whether the applicant met the criterion for the grant of a protection visa set out at s.36(2)(aa) of the Act ([58] – [60] at CB 201). That is, under complementary protection. Further, it plainly understood that s.91R(3) did not apply in these circumstances, and did consider whether the applicant’s conduct in Australia could satisfy s.36(2)(aa) of the Act. It found that it could not.

5. I therefore considered particular three as a separate complaint, and understood it to be as follows. The applicant claimed that he deserted the ship on which he travelled to Australia. The Tribunal should have considered this as part of its consideration under complementary protection. Further, that he would be persecuted (in the context of s.36(2)(a) of the Act) if he returned to Bangladesh as a person who had deserted a ship on which he had been a crew member.

6. The applicant’s complaint, either with reference to s.36(2)(a) or (aa) of the Act, does not assist him in raising an arguable case. That is because he made no such claim before the Tribunal to fear serious or significant harm for reason of deserting his ship such as to engage the Tribunal’s relevant obligation.

7. The only reference to his “desertion” or “ship deserter” in any of the documents submitted by the applicant to the delegate or the Tribunal was in the protection visa application form, which required him to nominate how he had entered Australia. He had “checked” the box indicating “ship deserter”.

8. The applicant made no claim to fear harm on return to Bangladesh because of his status as a “ship deserter” in his protection visa application, or in any of the documents he gave to the delegate, or the Tribunal, and there is no such reference in the report of the interview with the delegate or the hearing with the Tribunal.

9. The Tribunal is only required to deal with claims, and integers of claims, that are expressly made or clearly arising on the circumstances presented (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27). No claim regarding ship desertion falls within either description. Further, there was no articulated, substantive, claim in the “Dranichnikov” sense (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389). The particular, therefore, does not raise an arguable case for the relief sought.

10. I did not understand from the applicant that the fourth complaint before the Court, while making a reference to arriving in Australia by ship, was focused on any fear of harm for reason of desertion. Rather, that he came here by ship, and deserted, and that the Tribunal should have understood from this that he only took this action because he was of genuine fear of harm in Bangladesh “because of politics”.

11. This does not raise an arguable case for the relief sought. First, the applicant did not point to, nor is it evident on the material before the Court, that he expressly made this claim, or that it can be said it clearly arises from the circumstances presented.

12. Second, the applicant’s evidence, as set out in the Tribunal’s decision record, was that the applicant had been working on ships (starting with a course in 2008 to become “a deck cadet” – [7] at CB 190). There is nothing here to say that he gave the emphasis that he now does to his “ship’s desertion” to the Tribunal.

13. Third, in his subsequent submissions before the Court, following the Minister’s submissions, the applicant appeared to suggest that he had “not mentioned this” to the Tribunal but, nonetheless, he stayed in Australia because of his “political problems”. As set out above, the Tribunal dealt with the applicant’s claims in this regard.

14. The claim that because of his arrival by ship, and his desertion of that ship, he would face harm if he returned to Bangladesh is therefore a claim made by the applicant now, and not before the Tribunal. There is no legal error in the Tribunal’s decision in this regard. No arguable case is raised.

15. As stated above, the applicant also complained before the Court that he had put to the Tribunal that certain “events” had occurred in Bangladesh. He insisted to the Court that he had participated in these events. The Tribunal made comprehensive findings rejecting the applicant’s factual account of events in Bangladesh based on its analysis of his evidence (see [8] above). These findings were reasonably open to the Tribunal. The applicant’s complaint, therefore, seeks impermissible merits review. No arguable case is raised in these circumstances.

16. Similarly, events said to have occurred after the making of the Tribunal’s decision (the shooting of a person in his home area) cannot assist now in raising an arguable case that the Tribunal fell into legal error.

Conclusion

1. In all, no arguable case is raised in the grounds of the application or by the applicant before the Court. Further, for the sake of completeness, I cannot see any other issue that would assist the applicant in raising such an argument on the material before the Court. It is, therefore, appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  29 September 2014