SZTKV v Minister for Immigration

[2014] FCCA 860

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTKV v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 860

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425

Applicant: SZTKV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2591 of 2013

Judgment of: Judge Driver

Hearing date: 28 April 2014

Delivered at: Sydney

Delivered on: 28 April 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S Given

Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2591 of 2013

SZTKV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 1 October 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from Bangladesh and had claimed political persecution.  He claims to fear returning to Bangladesh on the basis that he is an active supporter and member of the Bangladesh Nationalist Party (BNP).  He claims that his cousin was abducted in a case of mistaken identity, where political opponents were targeting the applicant.  Other friends and colleagues with the BNP have been killed because of their political activities.  He claims that his house was attacked, his wife and sister raped, his son threatened and false charges were filed against him.

3. The applicant was married on 9 May 1990 in Bangladesh.  His wife, son, mother and two sisters all still live there.  He arrived in Australia on 25 October 2011 on a subclass 456 visa.  In support of his application for a protection visa, he provided photographs of his family, including his cousin, who has been missing since 1996. 

4. The applicant was interviewed by the Minister’s delegate on 1 June 2012.  He was assisted by a solicitor and migration agent, who provided a lengthy submission.  The delegate rejected the visa application and the applicant sought review before the Tribunal.  The applicant appeared before the Tribunal at a hearing on 26 August 2013.  The applicant was assisted before the Tribunal by his registered migration agent and solicitor, who attended the Tribunal hearing.  The applicant provided to the Tribunal at the hearing six additional documents. 

5. It was apparent at the hearing that the Tribunal had credibility concerns about the applicant’s claims. By letter dated 9 September 2013 the Tribunal wrote to the applicant, pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act). That letter drew attention to apparent inconsistencies in evidence given by the applicant to the Tribunal, as compared to evidence given orally before the delegate. The applicant responded to the invitation to comment on 20 September 2013. That response included a purported statement from the applicant’s wife.

6. The Tribunal in its decision had wide-ranging and detailed credibility concerns with the applicant’s claims.  First, the Tribunal found that the applicant’s travel history did not support his claims to have been targeted by the Awami League, since his cousin was abducted in 1996.  Secondly, the Tribunal found that the applicant’s evidence in relation to his activities with the BNP in Bangladesh was vague and unconvincing.  Thirdly, the Tribunal found that the applicant’s claim to have been in hiding since 1996 was inconsistent and unpersuasive.  Fourthly, the Tribunal found that the applicant’s claim that the Awami League came to his home and raped his wife and sister in 1997 was unpersuasive and inconsistent.  Fifthly, the Tribunal found that the applicant’s evidence in relation to whether his house was broken into in 2006 to be inconsistent and unpersuasive.  Sixthly, the Tribunal found that the applicant’s evidence in relation to the threats made against his son were inconsistent and unpersuasive.  Seventhly, the Tribunal found that the applicant provided inconsistent evidence in relation to his cousin’s abduction in 1996.  Eighthly, the Tribunal found that the applicant’s evidence in relation to the charges against him was significantly inconsistent and unpersuasive.  Ninthly, the Tribunal found that the applicant’s claim that a colleague and friend in the BNP was stabbed and died in his arms on 9 October 2007 was false. 

7. At [36] of its reasons[1], the Tribunal considered the documentary evidence submitted by the applicant.  Those documents included the letter provided from his wife.  The Tribunal was not satisfied that the documents were genuine.  Neither was it satisfied that the documents overcame its other credibility concerns.  The Tribunal separately considered a letter provided from the BNP in Australia.  The Tribunal again found that the document did not overcome its other concerns.

   [1] court book, page 235

8. The Tribunal then considered secondary claims made by the applicant and the complementary protection criterion.  The Tribunal found that the applicant did not qualify for protection in Australia, either as a refugee or pursuant to the complementary protection criteria. 

9. These proceedings began with a show cause application, filed on 23 October 2013.  The applicant continues to rely upon that application.  There are three grounds in that application:

   1. The Tribunal made an error in deciding the application particularly in regards to the applicant’s wife and sisters were raped by the cadres of Mojibor Balum of Awami League.  This incident was not disclosed by applicant’s wife and sister due to family’s image in society and the Department did not ask any questions regarding this issue.  The Tribunal did not provide any weights about the applicant’s evidence.  Rather the Tribunal deny its existence without any basis.

   2. The Tribunal made error not asking any questions to the author of the letters submitted by the applicant.  Without any investigations or any queries.  The Tribunal negated reality of the submitted documents and its genuineness, which is unreasonable and is not maintainable.

   3. The Tribunal made error in relation to the assessment of the threats towards the applicant’s son and where the inconsistent between the Tribunal.  The Tribunal failed to disclose the details of the fact. (errors in original)

10. The application was accompanied by a short affidavit, in which the applicant makes general assertions of error by the Tribunal.  I treated that affidavit as a submission. 

11. I have before me as evidence the court book, filed on 20 November 2013. 

12. The applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.  Grounds 1 and 3 take issue with the Tribunal’s reasoning and findings in relation to the alleged rape of his wife and sister and threats made towards the applicant’s son.  The assessment of the applicant’s credibility was a matter for the Tribunal. 

13. The Tribunal complied with its obligation under s.425 of the Migration Act to invite the applicant to a hearing. The Tribunal’s credibility concerns were discussed with him at the hearing. In addition, the Tribunal met its obligation under s.424A of the Migration Act to invite comment on apparent inconsistencies in oral evidence given to the delegate and the Tribunal. Grounds 1 and 3 invite impermissible merits review.

14. Ground 2 relates to the Tribunal’s assessment of the documents submitted by the applicant.  The applicant appears to be asserting there was some obligation on the Tribunal to make further inquiries in relation to those documents.  The Tribunal was not under any such obligation.  First, the Tribunal had made comprehensive adverse credibility findings against the applicant.  Secondly, and in any event, the Tribunal considered the documents submitted by the applicant on their face.  Unfortunately for the applicant, the documents tended to add to the Tribunal’s concerns, rather than alleviate them. 

15. In my view, there is no arguable case of any jurisdictional error by the Tribunal.  The applicant has had the benefit of advice, pursuant to the former panel advice scheme, by experienced counsel.  He has not taken up the opportunity I afforded him to provide an amended application. 

16. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

17. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant queried means of payment of costs and his appeal rights and I provided him with certain information.

18. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  29 April 2014