SZTND v Minister for Immigration

[2014] FCCA 2703

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTND v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2703

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – allegation of bias – whether Tribunal did not consider a claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425

Applicant: SZTND

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2831 of 2013

Judgment of: Judge Nicholls

Hearing date: 29 September 2014

Date of Last Submission: 29 September 2014

Delivered at: Sydney

Delivered on: 21 November 2014

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms M Stone of DLA Piper Australia

ORDERS

1. The application made on 14 November 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $ 4300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2831 of 2013

SZTND

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 14 November 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 October 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from it.

2. The applicant is a national of Bangladesh (CB 50). He arrived in Australia on 13 April 2012 as the holder of short term business visa (CB 75). He applied for a protection visa on 7 June 2012 (CB 1 to CB 55).

3. The applicant’s claims to protection were initially set out in an attached statement (CB 52 to CB 55). The applicant claimed to fear harm in Bangladesh because of his membership of, and activities on behalf of, the Bangladesh Nationalist Party (“BNP”).

4. He claimed to have been a Joint Secretary and Vice President of the student wing of the BNP at university between 2001 and 2004. Further, that he had worked for and assisted a BNP candidate in elections in 2001 and 2008. He claimed to have become the Joint Secretary of Ward No.41 North of the BNP in Dhaka.

5. The applicant claimed to fear harm from members of the Awami League (“AL”) who were politically opposed to the BNP. He claimed to have been beaten by AL activists on 29 September 2010. Further, that he reported the attack to the police, who did nothing.

6. The applicant also claimed that in 2011 he became one of the executive members of the Thana Committee (presumably a committee of, or associated with, the BNP, although this remained unexplained in the applicant’s statement). He was again beaten by AL supporters on 25 May 2011. A relative took him to a private medical clinic after finding the applicant unconscious in the street. The applicant’s father reported this incident to the police. However, the police told his father that a complaint had been made against the applicant.

7. The applicant claimed that he had left Bangladesh because he found it difficult to live there. He feared “persecution” and came to Australia to seek protection as a refugee.

8. The applicant was interviewed by the delegate on 24 September 2012 (CB 78.2). The delegate refused the application for a protection visa on 23 November 2012 (CB 69).

The Tribunal

1. The applicant applied for review to the Tribunal on 20 December 2012 (CB 87 to CB 93). He was assisted by a registered migration agent (CB 90). He submitted a letter to the Tribunal which was said to have been “issued” by the President of the BNP No.41 Ward (CB 123 to CB 124).

2. The applicant, accompanied by his representative, attended a hearing before the Tribunal on 20 September 2013 and gave evidence (CB 127). At the hearing the applicant also claimed that his family members in Bangladesh had had difficulties because of him, and that the same group that attacked him had also attacked his family, including torturing his parents ([18] at CB 142). The applicant also claimed to have attended BNP meetings in Australia ([22] at CB 143).

3. The Minister’s written submissions set out the Tribunal’s reasoning. I am satisfied that they are a fair representation of the Tribunal’s findings. I adopt them for the purposes of this judgment (see [7] – [10] of the respondent’s written submissions):

   “[7] The RRT accepted that the applicant was a BNP supporter but did not accept that the applicant had held the positions in the BNP in Bangladesh which he claimed to have held.[1]   The RRT did not accept that the applicant had been targeted for harm by Awami League members/supporters/cadres because of his BNP membership/activities in Bangladesh.[2]  The RRT did not accept that the applicant had been attacked in 2010 and 2011 as claimed.[3]  The RRT did not accept that there was a real chance that the applicant would suffer serious or significant harm in Bangladesh for the reasons he claimed.[4]

   [8] As a result of these findings the RRT did not accept the applicant's claim that his family members had been or will be harmed in Bangladesh due to the applicant's problems.  The RRT did not accept that the family home had been attacked in 2010 or that Awami League members/supporters tortured the applicant's parents to find out where the applicant was.[5]

   [9] The RRT accepted that the applicant had attended some BNP meetings/activities in Australia since his arrival, but did not accept that the applicant feared harm in Bangladesh due to those attendances or that there was a real chance that he would suffer serious or significant harm in Bangladesh because of those attendances.[6]

   [10] The RRT considered the letter submitted by the applicant which was purportedly from the President of the BNP Ward No 41, and the applicant's evidence at the hearing that he had told the writer of the letter his details and what had happened to him so that the writer could include those details in the letter.  The RRT concluded that the document was not reliable evidence of the facts contained in it.[7]”

   [Footnoted references renumbered.]

   [1] CB 143 [22]

   [2] CB 143 [23].

   [3] CB 143 [23].

   [4] CB 144 [28].

   [5] CB 144 [28].

   [6] CB 143 [22].

   [7] CB 144 [26].

Application Before the Court

1. In the application form that is before the Court the applicant indicates that he seeks review of both the decisions of the delegate and the Tribunal. The grounds of review are in the following terms, although no reference is made to the delegate’s decision there:

   “1. The Tribunal made an error in deciding my application with the Tribunal particularly in saying that “the Tribunal does not accept as true that the applicant was targeted for harm” without any reasons explanation.

   2. The Tribunal was biased by the Country Information and assess the applicant's case without open mind and particulary the document was submitted by the applicant denied the authenticity of this document on the basis of the country information unreasonably.

   3. The Tribunal failed to Consider the totality of the case and made an error.”

   [Errors in the original.]

Before the Court

1. At the first Court date in this matter on 11 December 2013 the applicant’s case was set down for final hearing. Amongst other matters, orders were made giving the applicant the opportunity to file any amended application and any evidence by way of affidavit, in support of his grounds and written submissions. Given the nature of the grounds of the application I urged the applicant to consider obtaining legal advice. Nothing further was filed by the applicant in the nine months available since the first Court date.

2. At the hearing the applicant appeared in person. He was assisted by an interpreter in the Bangla language. Ms M Stone appeared for the Minister.

3. Before the Court the applicant handed up two documents. The first was a document that appeared to be a “response” to the Minister’s written submissions. The second was a bundle of news articles from various sources.

4. The “response” did no more than restate his claims to protection and take issue with the Tribunal’s findings about the credibility of the applicant. These findings were reasonably open to the Tribunal on what was before it and it gave cogent reasons for them. In that light, the “response” asks the Court to engage in impermissible merits review.

5. The applicant also complained in this document that the Tribunal did not “carry out [a] proper inquiry” of the documents that the applicant provided. In context, this appeared to refer to the letter he submitted to the Tribunal. In relation to any complaint as to the Tribunal’s finding that the letter was not “reliable evidence” ([26] at CB 144), that is addressed below at ground two.

6. In relation to the applicant’s complaint that the Tribunal did not conduct a “proper inquiry” with a “competent agency in Bangladesh” as to the origin and authenticity of the letter, the Tribunal is under no such obligation to inquire. This was not an inquiry of a critical fact the existence of which was easily ascertained (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123). Further, the factual assertions contained in this “response” as to the providence of the letter were not before the Tribunal, therefore no jurisdictional error could be made be out in this regard.

7. Before the Court the applicant again stated that the Tribunal should have believed him and that the political situation in Bangladesh is “really bad”. This again, does no more than take issue with the Tribunal’s findings and, therefore, seeks impermissible merits (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

8. The second set of documents were various media reports, downloaded from the internet, about various events in Bangladesh, generally about political violence in that country.

9. All appear to have been downloaded after the date of the Tribunal’s decision and they do no more than seek to ask the Court to make findings about the political situation in Bangladesh. That is, the applicant seeks impermissible merits review.

10. In any event, any such attempt misunderstands the basis for the Tribunal’s decision. The Tribunal found adversely to the applicant because it found, based on his own evidence, that his claims were not credible. The Tribunal’s findings in this regard were reasonably open to it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The applicant again seeks impermissible merits review.

Consideration of the Grounds of the Application

1. None of the applicant’s grounds establish jurisdictional error on the part of the Tribunal. Ground one asserts that the Tribunal erred in not providing reasons or an explanation as to why it did not accept as true the applicant’s claim that he was targeted for harm.

2. The Tribunal made this, impugned, finding at [23] (at CB 143):

   “The Tribunal does not accept as true that the applicant was targeted for harm, by Awami League members/supporters/cadres because of his BNP membership/activities in Bangladesh as the applicant claims. The Tribunal does not accept as true that either himself or his family members were attacked by Awami League members as he claims in 2010 and/or 2011 or that his father was told by police that there was/is a complaint made about him (the applicant) as he states in his statement made in support of his application for protection visa.”

3. The applicant’s complaint that the Tribunal did not give reasons for, or explain, this finding is without merit when regard is had to [24] (at CB 143) to [25] (at CB 144) of its decision record.

4. The Tribunal’s reason was that the applicant had not given credible evidence about his claims. The Tribunal explained this with reference to the inconsistency between his claimed fear and the fact that he had lived in Dhaka with friends at his usual address, visited his parents at the family house and worked at his usual job for some time after obtaining a passport and being granted a visa to travel to Australia. The Tribunal noted that it raised this concern at the hearing with the applicant, but that the applicant did not reasonably address the Tribunal’s concern. The Tribunal’s conclusion was ([25] at CB 144):

   “The Tribunal also does not consider that it is consistent with the applicant’s claims, namely that he left his country because he was harmed there and feared further harm there, that he did not leave his country until 13 April 2012 although he had a passport in February 2011 and his visa for Australia was granted on 15 February 2012. When the Tribunal raised this concern with the applicant he said variously that he had to think about his family members, that he had responsibilities in Bangladesh and that he had to raise money to travel which relatives gave him. When the Tribunal queried this explanation and asked why he had left it until after he had his visa to consider raising the money to leave his country, especially given that he had earlier told the Tribunal that he obtained his passport in February 2011 because he thought at that time that he would have to leave Bangladesh because of his problems, the applicant said that he was still thinking about whether he would leave but that after he was granted the visa he determined that he would go.  In the Tribunal’s view the applicant did not give a reasonable explanation for his delay in leaving his country  given the very serious claims he makes about what happened to him, and what he fears will happen to him, in Bangladesh.”

5. In all, I agree with the Minister’s submissions that ground one merely seeks to cavil with the merits of the Tribunal’s finding. No jurisdictional error is revealed in these circumstances.

6. Ground two asserts that the Tribunal was biased by the country information before it and that this was revealed with its finding that the letter he submitted in support of his claims was not authentic.

7. Such an allegation is serious given its attack on the integrity of the decision maker. For this reason it must be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

8. The Tribunal considered the letter at [26] of its decision record (at CB 144). Contrary to the applicant’s assertion, the Tribunal made no finding that the letter was not authentic. Rather, the Tribunal relevantly found that the document was “…not reliable evidence of the facts in it” ([26] at CB 144). The Tribunal based this on the applicant’s own evidence that he had told the author of the letter what to write in it, and country information concerning document fraud in Bangladesh.

9. This does not disclose that the Tribunal failed to bring an open mind to the question of the assessment of the document. Rather, the Tribunal’s reasoning, in my view, was reasonably open to it and probative of what was before it. Bias is not disclosed in these circumstances. Ground two is not made out.

10. Ground three asserts that the Tribunal failed to consider the totality of the case. As the Minister submitted, absent particulars the ground does not establish jurisdictional error. Further, the applicant did not give the ground any further particularity or explanation before the Court. In any event, there is nothing before the Court to show that the Tribunal failed to consider any aspect of the applicant’s claims.

Conclusion

1. In all, the complaints raised variously in the application to the Court, before the Court, and the “response” to the Minister’s submissions, do not reveal jurisdictional error. Nor is such error otherwise apparent. It is appropriate that the application be dismissed. I will make an order accordingly.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  21 November 2014