SZTIL v Minister for Immigration and Border Protection
[2014] FCA 1226
•5 November 2014
FEDERAL COURT OF AUSTRALIA
SZTIL v Minister for Immigration and Border Protection [2014] FCA 1226
Citation: SZTIL v Minister for Immigration and Border Protection [2014] FCA 1226 Appeal from: SZTIL v Minister for Immigration & Anor [2014] FCCA 1604 Parties: SZTIL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 798 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: 25 Appellant: In person with the assistance of an interpreter. Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: The Second Respondent filed a submitting notice.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 798 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTIL
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 fixed in the sum of $1,300.
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 798 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTIL
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 unsuccessfully applied to the Refugee Review Tribunal (the Tribunal) for a review of that refusal decision. He then challenged the Tribunal’s decision in judicial review proceedings in the Federal Circuit Court. That application was dismissed. He appeals to this Court from that dismissal.
BACKGROUND
The appellant claims that he meets the criteria for a protection visa because he has a well-founded fear of persecution in Bangladesh by reason of his political opinion. In short, he claims that he was a senior and active member of the Bangladesh Nationalist Party (BNP). As a result, he was discriminated against and harassed by members of the rival Awami League, which came to power in Bangladesh in 2009. He says that several “false cases” were made against him by the Awami League. He also claims that his business was the subject of extortion demands by the Awami League and he was forced to pay royalties which he could not pay. Finally, he says that he was involved in demonstrations concerning a proposed airport development. A false case was made against him in relation to his participation in a demonstration which took place on 31 January 2011. According to the appellant, that demonstration turned violent when it was broken up by police and Awami League activists.
A delegate of the Minister dismissed the appellant’s visa application on 25 July 2012. The delegate rejected the appellant’s claims on the basis of a finding that his evidence, including his documentary evidence, was not credible. The appellant then applied to the Tribunal for a review of the delegate’s decision.
TRIBUNAL PROCEEDINGS AND DECISION
The appellant provided a number of further documents in support of his review application in the Tribunal. He also gave oral evidence and presented arguments at a hearing convened by the Tribunal. Regrettably for him, the Tribunal was not persuaded by the appellant’s documents, evidence, or arguments. It rejected all his claims and found, as a result, that he did not meet any of the protection visa criteria. The Tribunal accordingly affirmed the refusal decision.
It is unnecessary to rehearse the Tribunal’s reasons in great detail. The Tribunal gave detailed consideration to the appellant’s claims and evidence and gave six reasons for finding that the appellant was not being truthful in his evidence.
First, the Tribunal found that the appellant gave inconsistent evidence in relation to amounts of money allegedly extorted from his business.
Second, the evidence relied on by the appellant in respect of his role and membership of the BNP and his attendance at meetings was, in the Tribunal’s view, both internally inconsistent and inconsistent with independent country information available to the Tribunal.
Third, the Tribunal reasoned that the appellant gave inconsistent and confused evidence about where he lived and when he went into hiding in Bangladesh.
Fourth, the appellant’s evidence about the inability of the police to locate him in Dhaka was, in the Tribunal’s view, implausible.
Fifth, the appellant’s evidence in relation to the supposed false charges against him was, in the Tribunal’s opinion, both inconsistent and unpersuasive.
Sixth, in relation to the additional documents relied on by the appellant in the Tribunal, the Tribunal expressed concern about the essentially unexplained late provision of these documents, particularly in the context of information available to the Tribunal concerning the prevalence of document fraud in Bangladesh. The Tribunal found that these documents were, in any event, inconsistent with aspects of the appellant’s evidence concerning his knowledge of the supposedly false charges.
The Tribunal found that these six matters, considered cumulatively, led it to find that the appellant’s evidence was not truthful. It was not satisfied that the appellant was a member of, or held any position with, the BNP, or was subject to extortion, or was falsely charged or harassed, or was the leader of protests against the airport, or that he faced any charges or warrants for his arrest. As a result, the Tribunal found that the appellant met none of the criteria for a protection visa either in respect of the Refugees Convention or complementary protection.
FEDERAL CIRCUIT PROCEEDINGS AND JUDGMENT
The appellant relied on the following two grounds in his Federal Circuit Court challenge to the Tribunal’s decision:
Ground One
The Tribunal committed jurisdictional error when it denied the procedural fairness in failing to identify the appliant’s is a member of the Bangladesh Nationalist Party (BNP) and the Applicant had real fear of persecution by rolling AL Government and its police though there were many evidences before the Tribunal the applicant was subject to real fear of persecution.
Particulars
The Tribunal stated, the applicant is a member of the BNP but the Tribunal Member did not believable (RRT decision 11at [21] as the applicant did not pay 05 Taka membership fee to become a primary member of the BNP. In reality the fee for membership is not obligatory and its voluntary contribution only. Any primary member of the BNP could contribute 05 Taka himself or other member can pay on behalf of him or even can pay all unpaid membership once a time which the Tribunal did not mentioned.
Ground Two
The Tribunal committed jurisdictional error and its failed to put the Applicant on notice that the issue of the false documents that the applicant produced before the Tribunal were false as there were not any information to the Tribunal Member that it has got information from its own sources that the documents were issued to supporting the applicant Onshore Protection Visa Application were false.
Particulars
The Tribunal whilst referred to the issue of false documents to support the protection visa application did not put the Applicant on notice that it was a determinative issue stated and in failing to allow the Applicant AN opportunity to be heard or comment on the issue of present Bangladeshi political persecution against opposition activists and leaders by the current regime and those circumstances which were matters and not in issued before the delegate. The Applicant was denied an opportunity to present arguments on this determinative issue.
(errors in original)The primary judge rejected both grounds.
In relation to ground one, the primary judge found that the appellant’s complaint concerning paragraph 21 of the Tribunal’s reasons amounted to nothing more than “impermissible merits review”. The appellant simply took issue with the Tribunal’s factual finding concerning the membership fee for joining the BNP. Even if the challenge to this finding had some merit, the primary judge found that it said nothing about the validity of the decision by the Tribunal and would not establish any jurisdictional error.
In relation to the second ground, the primary judge correctly noted that the appellant’s argument and submissions were not entirely clear. The essence of the challenge in ground 2 appeared to be that the Tribunal had failed to comply with a provision of the Act relating to the conduct of the review as a result of the way it dealt with the documents relied on by the appellant. The primary judge held, however, that the appellant was aware that there was an issue about the documents relied on by him. The Tribunal’s reasons reveal that the Tribunal discussed these issues with the appellant during the hearing, including its concerns about the late provision of the documents, document fraud in Bangladesh and inconsistencies. So much so was effectively conceded by the appellant in his oral submissions before the primary judge. There was, accordingly, no breach of the Act or any deficiency in the Tribunal’s conduct of the review. The primary judge also concluded that the weight to be given to evidence is entirely a matter for the Tribunal.
Accordingly, the primary judge found that the appellant had not made out either of the two grounds of review and had not established any jurisdictional error on the part of the Tribunal. His Honour, accordingly, dismissed the application.
APPEAL GROUNDS AND SUBMISSIONS
The sole ground of appeal in this Court is in the following terms:
That the Federal Circuit Court made an error in finding that there is no jurisdictional error.
No meaningful particulars are provided in respect of the alleged error. No written submissions were filed by the appellant.
The appellant made brief oral submissions at the hearing of the appeal. Those submissions did not identify, let alone demonstrate, any error on the part of the Federal Circuit Court or the Tribunal. Rather, the appellant simply stated that he feared he would be harmed if returned to Bangladesh and repeated some aspects of his claims that had been rejected by the Tribunal. He also raised some apparently new factual claims concerning the current conditions in Bangladesh and the persecution of members of his family. In effect, the appellant simply wanted this Court to make a new favourable decision, or to engage in merits review of the original refusal decision or the Tribunal’s decision. The Court has no jurisdiction to engage in such merits review.
DISPOSITION OF APPEAL
The Federal Circuit Court was correct to find that the Tribunal made no jurisdictional error in conducting and deciding the appellant’s review application. The appellant has advanced no meaningful argument to the contrary.
It was plainly open to the Tribunal to reject the appellant’s evidence and claims for the reasons it gave. Issues of credit and factual findings are entirely matters for the Tribunal. The reasons given by the Tribunal are clear, logical and reasonable. The arguments apparently advanced to the contrary by the appellant in the Federal Circuit Court had no merit and provided no basis for a finding of jurisdictional error on the part of the Tribunal. The appellant has advanced no argument in support of his claim that the Federal Circuit Court was in error in so finding.
Accordingly, the appeal must be dismissed.
The Minister, as the successful party, has applied for a costs order in the fixed sum of $1,300. The appellant simply submits that he has no money to pay such an order. That is no good reason for not making a costs order in favour of the Minister for the amount of $1,300, which appears to be a reasonable amount in respect of the conduct of this appeal.
Accordingly, the order will be that the appellant pay the Minister’s costs in the fixed sum of $1,300.
I certify that the preceding twenty-five (25) 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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