SZTPA v Minister for Immigration

[2015] FCCA 731

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 731

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal made a decision without hearing from him.

Legislation:

Migration Act 1958, ss.36, 425A, 425, 426A, 441A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTPA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2963 of 2013

Judgment of: Judge Cameron

Hearing date: 13 March 2015

Date of Last Submission: 13 March 2015

Delivered at: Sydney

Delivered on: 13 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms F. Taah of Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2963 of 2013

SZTPA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh who entered Australia most recently on 31 August 2012.  On 11 October 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Bangladesh because of his political opinion.  On 8 February 2013 the applicant’s application for a protection visa was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out in the Tribunal’s reasons.  To the extent that they are relevant, I will summarise them.

2. The applicant made the following claims in his protection visa application form:

   a)he had been a member of the Bangladesh Nationalist Party (“BNP”) from March to August 2012;

   b)because of his and his family’s popularity, the Awami League had not been able to establish themselves in his home area;

   c)he had been attacked and kidnapped by the Awami League as a result of his involvement with the BNP and was hospitalised as a result. He feared that they would attack him again; and

   d)he left Bangladesh in order to avoid harassment from the police and the “RAB” who might pursue criminal cases against him, put him in detention or kill him in crossfire.

3. In support of his application the applicant supplied, amongst other things, photographs purporting to depict him participating in BNP demonstrations.

The Tribunal’s decision and reasons

1. On 16 September 2013 the Tribunal wrote to the applicant pursuant to s.425 of the Act to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 30 October 2013 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice. No response was received from the applicant and he did not appear before the Tribunal on the day and at the time he was scheduled to appear. In those circumstances and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.

2. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

3. The Tribunal found that the applicant had not provided sufficient evidence to satisfy it of his claims. It stated that, had the applicant attended the hearing, it would have had an opportunity to discuss with him its concerns or to seek further information from him about various aspects of his claims including:

   a)how the applicant, having only been a member of the BNP from March to August 2012 and having only completed his schooling in July 2012, had achieved such a high political profile in such a short time as to warrant the level of targeting he claimed to have experienced from the Awami League;

   b)the extent of his father’s involvement with the BNP and why it was safe for his father to return to Bangladesh when it was not safe for the applicant;

   c)why the police were looking for him, how he had become aware that they were looking for him, why the police were not able to find him and whether there were any criminal charges pending against him;

   d)whether, when and why he had been hospitalised and whether he could provide supporting evidence from the hospital about his claimed injuries;

   e)why he had provided inconsistent evidence about the date of his alleged kidnapping and ransom;

   f)why the photographs he provided in support of his claims appeared to have been edited; and

   g)why the applicant could not relocate to another part of Bangladesh away from the Awami League cadres with whom he claimed to have problems.

4. In light of its concerns, the Tribunal was not satisfied that the applicant’s claims were credible.  Consequently, it was not satisfied that the applicant had been involved in the BNP in Bangladesh or that he had been attacked, kidnapped or threatened.   

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.RRT did not give me hearing chance.

   2.RRT did not give me justice.

2. At the hearing of this application the applicant made additional submissions directed to the merits of his protection visa application.  However, as I explained to him at the time, the Court does not have jurisdiction to reconsider the merits of his application and, consequently, those submissions do not disclose a basis upon which the Tribunal’s decision might be set aside. 

Ground 1

1. The applicant did not make clear what he meant in the first ground of the application that the Tribunal did not give him a “hearing chance” but I infer that he was referring to the fact that the Tribunal proceeded to make a decision in his absence. In this connection I have considered the evidence contained in the Court Book, which was exhibit A in this proceeding, and am satisfied that the Tribunal notified the applicant of its hearing date in accordance with the requirements of the Act. In particular, I infer from the evidence and, specifically, the evidence of its delivery on 17 September 2013 that the invitation to the Tribunal hearing was sent to the applicant by pre-paid post on 16 September 2013.

2. These facts and the address to which the letter was sent, namely, the one identified by the applicant in his Tribunal review application form, satisfy me that ss.425A and 441A of the Act were observed. In those circumstances, there was no error in the Tribunal proceeding to make a decision without hearing from the applicant and the first ground of the application is not made out.

Ground 2

1. The second ground of the application was not particularised and so lacks meaningful substance.  It may be that this allegation is directed to the fact that the Tribunal did not reach a finding in the applicant’s favour.  If so, it amounts to an invitation to undertaken impermissible merits review. 

Conclusion

1. Neither the allegations in the application nor the applicant’s submissions at the hearing of this application have demonstrated a basis upon which the Tribunal’s decision should be set aside. 

2. Consequently, the application will be dismissed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  31 March 2015