SZTKJ v Minister for Immigration and Border Protection
[2014] FCA 900
FEDERAL COURT OF AUSTRALIA
SZTKJ v Minister for Immigration & Border Protection [2014] FCA 900
Citation: SZTKJ v Minister for Immigration and Border Protection [2014] FCA 900 Appeal from: SZTKJ v Minister for Immigration [2014] FCCA 997 Parties: SZTKJ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 572 of 2014 Judge: GILMOUR J Date of judgment: 22 August 2014 Catchwords: MIGRATION - appeal from dismissal by Federal Circuit Court of application for review of Refugee Review Tribunal’s decision – delegate of Minister refused to grant the appellant a protection visa – Tribunal affirmed delegate’s decision – circumstances where Tribunal made adverse credit finding against the appellant – whether or not appellable error disclosed - whether or not adequate notice given that credibility was in issue – whether or not Tribunal failed to consider claim for complementary protection – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 424A, 476
Administrative Decisions (Judicial Review) Act1977 (Cth) 5(1)(e)Cases cited: SZTKJ v Minister for Immigration [2014] FCCA 997 Date of hearing: 19 August 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 34 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms S A Given
Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs. Solicitor for the Second Respondent: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 572 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTKJ
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
22 AUGUST 2014
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 572 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTKJ
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE:
22 AUGUST 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from the decision of a judge of the Federal Circuit Court of Australia (the primary judge), delivered on 16 May 2014: SZTKJ v Minister for Immigration [2014] FCCA 997.
The appellant is a citizen of Bangladesh who arrived in Australia on 5 August 2005. On 11 April 2013 he applied for a Protection (Class XA) visa under s 36 of the Migration Act 1958 (Cth) (the Act) and provided certain documents.
The appellant claimed to fear harm in Bangladesh from a Mr Allauddin, who had been demanding money from his family. He also claimed to fear being tortured or mistreated in detention because he has charges against him for assaulting and threatening to kill Mr Allauddin.
On 17 July 2013 a delegate of the then Minister refused to grant a protection visa to the appellant.
Tribunal proceedings
On 22 July 2013 the appellant lodged an application for review of the delegate's decision with the second respondent, the Refugee Review Tribunal (Tribunal).
By a letter dated 1 August 2013 the appellant was invited to attend a hearing before the Tribunal which he accepted and, on 26 August 2013, he attended a hearing at which he gave evidence and presented arguments with the assistance of a Bengali interpreter and with his agent present.
The Tribunal by letter dated 29 August 2013 invited the appellant to comment on information which it considered may be the reason, or part of the reason, for affirming the decision under review, pursuant to s 424A of the Act (the s 424A letter).
After the hearing the appellant made a written submission (including some documents) to the Tribunal through his agent, as well as providing a response to the s 424A letter.
On 24 September 2013 the Tribunal affirmed the delegate's decision not to grant a protection visa.
The Tribunal's decision to affirm the delegate's decision was based primarily on a finding that the appellant was not a credible witness. The Tribunal made its adverse credit finding because of, amongst other things, gaps and identified inconsistencies in the appellant's evidence to the Tribunal. The Tribunal found that the appellant had progressively embellished his claims, provided evidence which lacked coherence and unpersuasively shifted the emphasis of his claims regarding Mr Allauddin from it being a financial dispute to a political dispute.
The Tribunal also gave no weight to certain documents provided by the appellant. There was independent country information going to the prevalence of document fraud in Bangladesh.
For these reasons the Tribunal found that it was not satisfied that the appellant had a well-founded fear of persecution or that there were grounds for believing that he faced a real risk of significant harm.
Federal Circuit Court proceedings
By an application filed in the Court below on 16 October 2013, the appellant sought judicial review of the Tribunal decision pursuant to s 476 of the Act and raised six general grounds of review.
The first and second grounds of review as argued orally alleged a breach of procedural fairness. At the hearing the primary judge noted that the appellant was unrepresented and ordered the first respondent (Minister) to file a transcript of the Tribunal hearing to address the Court’s query as to whether the appellant had been on notice that his credibility could be an issue dispositive of the review: SZTKJ at [14]-[15].
The appellant asserted before the primary judge that the Tribunal did not give him adequate notice or did not give him “a formal notice” as to credibility being in issue: SZTKJ at [16].
The primary judge found that the appellant's general credibility had not been an issue before the delegate and, therefore, that the appellant had been entitled to assume it was not an issue which might be dispositive of the review before the Tribunal unless otherwise notified: see SZTKJ at [19]-[20]. His Honour in that respect observed that the Tribunal had so notified the appellant orally during the hearing: see SZTKJ at [21]-[22]. It was also noted that the Tribunal had raised specific issues as to credit with the appellant for comment in the s 424A letter: SZTKJ at [23].
The third ground in the Court below alleged a failure by the Tribunal to take into account “relevant materials and considerations”. These were three sets of documents, one of which was ultimately re-translated. All three were submitted to the Tribunal: see SZTKJ at [29]-[35]. The primary judge noted that the Tribunal had indeed considered the documents.
The fourth ground alleged that the Tribunal had “ignored relevant materials”. The primary judge noted that this ground overlapped with the third ground, and that to the extent that the appellant submitted in support of this ground that the Tribunal ignored the documents to which his Honour had referred in consideration of the third ground, the fourth ground failed in relation to those documents. However, the appellant submitted in support of the fourth ground that the Tribunal ignored particular country information. The primary judge noted that the Tribunal specifically referred to receipt of the information as well as the appellant’s submissions in that respect. However, as the primary judge correctly observed, given the appellant’s lack of credibility in the way he had presented his claims, the occasion for the Tribunal considering this country information did not arise.
Ground 5, which alleged the Tribunal had failed to ask relevant questions and made a decision “beyond power”, was rejected as raising no arguable ground of review. The primary judge noted in this respect that at the hearing the appellant was unable to identify the questions which he claimed the Tribunal ought to have asked him: SZTKJ at [42]-[43].
Ground 6 alleged that the Tribunal misapplied the “test of whether there was a real risk of significant harm to the [appellant] if returned to his country of nationality”. The primary judge assessed the particulars to this ground as against the Tribunal's reasons for decision and concluded that the Tribunal neither misunderstood nor misapplied the criteria specified in ss 36(2)(a) or 36(2)(aa) of the Act. The primary judge again observed against the background of the adverse credibility findings that the Tribunal had not accepted his claims including his claims that his brother had been tortured whilst in police detention: SZTKJ at [44]-[48].
Notice of appeal
The appellant challenges the whole decision of the primary judge and raises four grounds of appeal which, in summary, are that:
(1)The decision was not made on the basis of rationally probative evidence but rather the Tribunal relied on vague assertions as to the prevalence of forged documents in Bangladesh. The Tribunal imputed knowledge of the Australian legal system to the appellant.
(2)The delegate and Tribunal failed to consider the appellant’s eligibility for complementary protection. This in part raises an issue of procedural fairness.
(3)The Tribunal's decision was an improper use of power for the purposes of s 5(1)(e) of the Administrative Decisions (Judicial Review) Act1977 (Cth) because it was based on irrelevant material.
(4)The Tribunal breached s 424A of the Act by failing to put adequately to the appellant that his credibility was in issue.
The Minister submits that each of these grounds amounts to a bare assertion or fundamentally misunderstands the jurisdiction of the Court in these proceedings, particularly as there is a degree of merits review attempted. The Minister also submits, correctly, that to the extent that the second ground of appeal seeks to impugn the delegate's decision, there is no jurisdiction to review a primary decision.
Grounds 1 and 3 were not raised in the Court below.
In any event, the Minister submits that contrary to the assertion in the first ground, the findings concerning document fraud in Bangladesh were open to the Tribunal on the material before it. I accept this submission.
In any event those findings require to be seen, as they were by the Tribunal, not in isolation but in the context of the adverse credit findings justifiably reached by the Tribunal in relation to the appellant.
Grounds 2 and 4 mainly rehearse what was argued before the primary judge. I agree with his Honour’s reasons. There is no merit in the appellant’s complaint that he was denied procedural fairness because he was not afforded the opportunity to present originals of certain documents, photocopies of which were before the Tribunal and which were given no weight by it.
The reasons of the Tribunal concerning these documents were as follows:
23.The applicant submitted documents which he claimed to be photocopies of warrants and police and court documents relating to charges against him of assault and threatening to kill [Mr A]. During the hearing the Tribunal put to the applicant it had concerns the documents were not genuine and that country information indicated it was relatively easy to obtain false police and court documents in Bangladesh. The applicant responded that his documents are authentic.
24.The translations of these photocopied documents which the applicant had previously submitted to the Department were in very poor and often unintelligible English so that it was not possible to properly understand the document contents. At the hearing the applicant agreed to provide accredited English translations of these documents and his mother’s letter to the Tribunal within two weeks, by 9 September 2013. On the morning of 9 September 2013 the applicant’s Agent sent an email message to the Tribunal requesting a further two weeks to provide the translations without offering any reasons for why this was needed. The Tribunal wrote to the Agent declining to grant the request in view of the lack of any reason provided for the request. On 10 September 2013 the applicant’s Agent telephoned the Tribunal and stated the extension was needed because it took time to obtain the translations in Australia and they should be completed in about one week, however she asked for the further two weeks in case there were mistakes in the translations.
25.In the afternoon of 23 September 2013 the Tribunal received a further written submission from the Agent and English translations of the applicant’s court and police documents, but not his mother’s letter.
26.One of the translations is purported to be an order for arrest warrants by the Chief Judicial Magistrate office, dated [in] August 2012, containing a schedule of twenty different names and addresses and cases against each of the people listed. One of the names listed is “[Alias B and address]” and refers to a case against him under [a certain section] of the Penal Code and a Non F.I.R. [number and dated in] 2012. Another translation is dated [in] April 2013 signed by a “[name] Advocate” stating the writer is the advocate of [the applicant (incorporating Alias B name in brackets)] and [another person]; an accusation is brought against them which is false and intriguing; the writer is dealing with their case; and that it is not wise for [the applicant] to return to his country as there is a warrant against him. Another translation is dated [in] March 2013 purporting to be from the [police station] referring to a Non F.I.R [number] and describes a complaint by [name similar to Mr A] against “[Name C and Name D at a certain address] that [in] February 2011 he entered the accused’s house to ask them to return his money and the accused bit[sic], injured, intimidated and threatened to kill him; and listing four witnesses including the complainant. Another translation is purported to be an order to compel the appearance of an accused person, on a [Court] criminal process form, dated [in] July 2012; referring to the accused “[Name D]” and an arrest warrant against him; and ordering the seizure of his property. The final translation is dated [June] 2012 signed by a “[name]” of the [police station] and refers to a “[name deleted]” and a “[name deleted]” stating that after receiving the warrant of distraint the writer reached the address and found the accused was absconding; as the accused had no movable property the warrant is returned to the court without seizure.
27.The Agent’s written submission restates the applicant’s case and does not include any new information. She sets out country information regarding widespread and frequent police and judicial corruption in Bangladesh, submits the applicant cannot relocate, and submits that the applicant is also at real risk of being subjected to one or more of the five types of significant harm set out in s36(2A) of the Act.
28.The Agent adds at the end of her written submission a request for a further opportunity to comment or provide information on any adverse information or finding “should the Tribunal reach a conclusion that any issue(s) raised in this Post Hearing submission or country information relied in this Post Hearing submission is/are not relevant or will not be taken into account, by the Tribunal in reaching a decision in the Applicant’s case”. As the matters considered adverse have been raised by the Tribunal with the applicant at hearing, including through s 424AA during the hearing, and in a s 424A letter, and the applicant was allowed two weeks, and then a subsequent further two weeks, to provide more information, comment and responses the Tribunal is satisfied that he has had a meaningful opportunity to address the adverse concerns and a further opportunity is not necessary.
29.As put to the applicant country information indicates it is relatively easy to obtain false court and police documents in Bangladesh. The Canadian High Commission in Dhaka, in July 2005, advised the Canadian Immigration and Refugee Board (IRB) as follows:
Many false documents exist; … The rampant corruption in various levels of the government weakens the integrity and the credibility of officially issued documents … It is common for [political party] membership confirmation letters to be issued to facilitate verification procedures, even if the information is incorrect … We often hear people saying that it is normal to provide incorrect information for a third party, because it is considered a duty to help co-nationals/brothers to immigrate to a so-called ―rich country … Genuine medical certificates containing incorrect information can also be issued … Birth certificates are issued [often years after the person‘s birth] upon verbal or written request, and no proof of the person's date of birth, identity or age is required; these certificates have the same value as the information provided by the applicant … Similarly, it is relatively easy to obtain a passport under a false identity.
30.An advice from the Department of Foreign Affairs and Trade states the following:
Arrest warrants can be bought- really any piece of paper you can get anywhere. A lot of documents are written in English or in Bengali, the passports are in both English and Bengali. If you get an arrest warrant and in the past you have only seen them in Bengali and the next one comes in English, it does not necessarily mean that the document is fraudulent even though it probably is.
31.As stated above the purported police and court documents submitted by the applicant are photocopies, not original documents. In view of the available country information that false official documents are easy to obtain in Bangladesh, the Tribunal’s substantial credibility concerns regarding the applicant’s primary claim, and the fact the documents are copies, the Tribunal finds they are of little evidentiary value and gives them no weight.
Two matters are evident. First, the appellant was given ample opportunity to present evidence, generally, including in relation to these documents. If originals existed he had sufficient opportunity to present them. He did not.
Second, he did not mention to the Tribunal that he, or his brother, had originals nor did he ask for further time to obtain these for production to the Tribunal. It was not for the Tribunal, of its own initiative, to pursue these matters.
These grounds disclose no appellable error.
The Tribunal considered in some detail in its Statement of Decision and Reasons at [37]-[38] the claim for complementary protection pursuant to s 36(2)(aa) of the Act. This issue was also considered and dealt with by the delegate to the Minister, as noted in the Decision Record.
The primary judge was astute to explore possible grounds of error including, as I mentioned, requiring the Minister to obtain and file a transcript of the Tribunal hearing on the question of notice to the appellant that those credit findings may be dispositive of his application before the Tribunal. The transcript disclosed that on at least two occasions such notice had indeed been given to the appellant by the Tribunal, which noted that the appellant had “given responses to those concerns”.
The notice given orally at the hearing was in addition to the written notice concerning issues going to the appellant’s credit contained in the letter from the Tribunal to the appellant dated 29 August 2013.
The appeal will, for these reasons, be dismissed with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 22 August 2014
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