SZTQT v Minister for Immigration

[2014] FCCA 1543

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1543

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – no jurisdictional error – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), s.424A

Applicant: SZTQT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3074 of 2013

Judgment of: Judge Manousaridis

Hearing date: 8 July 2014

Delivered at: Sydney

Delivered on: 8 July 2014

REPRESENTATION

Applicant in person.

Solicitors for the Respondents: Ms R. Jones
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3074 of 2013

SZTQT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Before the Court today is an application by the first respondent (Minister) for an order that the application for judicial review filed in these proceedings be dismissed. The order is sought pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) which provides that at a hearing of an application for an order to show cause the Court may dismiss the application “if it is not satisfied that the application has raised an arguable case for the relief claimed”.

2. The application for judicial review relates to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant a protection visa to the applicant.  The Tribunal affirmed the decision because it had concerns about the applicant’s credibility and the plausibility of the applicant’s claims, and ultimately because it did not accept that the applicant was a witness of credit.  After I heard the applicant’s oral submissions, I informed the applicant that his submissions were directed to showing that the decision of the Tribunal was incorrect.

3. I explained to him that it is not the role of this Court to determine whether he has a valid claim for refugee status.  That was the function of the Tribunal.  I informed the applicant that the role of this Court is to determine whether the Tribunal made its decision according to law.  I told the applicant that he should be aware what the role of the Court is so that he can have another opportunity to make submissions to the Court.  I reminded the applicant that he could make such submissions after the legal representative of the Minister made her submissions. 

4. After the Minister’s legal representative made her submissions, the applicant said he wanted further time to provide documents.  He said he wanted time because he did not have enough knowledge.  After I asked him what knowledge he expected to acquire that he already did not possess, the applicant said he wanted to seek legal advice.  A little later, however, the applicant said that he did seek legal advice. 

5. There is also before me a letter dated 6 January 2014 from the lawyer for the Minister to the applicant.  In that letter the following is stated under the heading “Legal Advice”:

   You are strongly urged to obtain legal advice and, if possible, legal representation in this matter. This is a complex and technical area of law requiring knowledge of the relevant provisions of the Migration Act 1958 and you may do yourself a disservice if your case is not properly considered. If you do intend to seek legal representation, you should do so immediately.

6. I do not propose to grant the adjournment the applicant seeks.  There must be some tangible utility to granting an adjournment.  In my opinion there would be no utility in adjourning this matter.  The applicant has sought legal advice, but has appeared at the hearing and has conducted the proceedings in general without the benefit of a lawyer.  There is nothing to show that granting the applicant further time will, or may, result in the applicant being able to secure the services of a lawyer.  Further, the applicant has not indicated that an adjournment will have the prospects of placing him in a position to provide additional grounds in support of his application.

7. This then leads me to consider the Minister’s application that the application for review be dismissed.  That requires me to first set out the claims the applicant made in his application for a protection visa and before the delegate. 

8. The applicant’s claim before the delegate for protection was based on the following asserted facts:[1] the applicant is a national of Bangladesh;  the applicant’s father owned a tailoring business in the applicant’s village;  a cousin of the local secretary of the Awami League owned a business that competed with that of the applicant’s father;  from around 2009 to 6 February 2011 the cousin threatened to kill the applicant’s father and his family and destroy the applicant’s father’s business unless the applicant’s father moved his business away from the village market;  on 6 February 2011, the cousin and his son attacked the applicant’s father, causing him serious injuries.

   [1] CB64-67

9. When the applicant and his brothers attempted to report the assault to police, the cousin and others prevented them by beating them and threatening to kill them if they reported the matter to police.  In the meantime, the local secretary of the Awami League reported to the police that the applicant and his brothers had a fight and the applicant had heard from the villagers that the senior members of the Awami League had ordered the police to arrest the applicant and his brothers.  One of the applicant’s brothers was arrested and detained for one and a half months before being granted bail, and the applicant too was arrested but was granted bail on 13 August 2011.

10. After returning from a business trip to Indonesia, the applicant was informed that the bail that had been previously granted to him had been withdrawn and that a warrant for his arrest had been issued.  The applicant went into hiding and on 10 October 2011 the applicant departed Bangladesh for Sydney.  The applicant said that he feared returning to Bangladesh because the local secretary of the Awami League and the Awami League would harass and kill the applicant and that he would not get a fair trial and would be found guilty because the judge has been paid by the local secretary of the Awami League to find the applicant guilty.

11. The applicant also claimed that the authorities in Bangladesh were not protecting him because they are in the pay of the Awami League.  The applicant supported his claim before the delegate by what purports to be an order issued by “The Court of the Senior Judicial Magistrate, The Court of Cognizance, Chatak Zone-Sunamganj” authorising the arrest of the applicant. 

12. The applicant also gave evidence before the Tribunal.  According to the Tribunal’s reasons for decision, the applicant presented what the Tribunal described as, “significant new evidence in support of his claims.” This included purported court orders and other court documents in which the applicant and others are referred to as fugitives. 

13. After the hearing, the Tribunal forwarded to the applicant’s legal representative a letter dated 3 October 2013, apparently under section 424A of the Migration Act 1958 (Cth), identifying information on which the Tribunal might rely on in a manner adverse to the applicant.[2] 

    [2] CB256-259

14. One item of information was a web search of the Bangladesh Supreme Court.  The letter indicates that the Tribunal searched the matter number that was the matter number of one of the documents the applicant had submitted to the Tribunal.[3]  That document is described as being “in the matter of” the person whose name is that of the applicant. The document appears to be a “petition for anticipatory bail”.  The applicant in the matter number the Tribunal searched was a person who bore a different name to that of the applicant.  The Tribunal invited the applicant to attend a second hearing, which the applicant did and gave further evidence.  The Tribunal rejected the applicant’s claim for review.  It did so because:[4]

    [a]spects of the information provided to the Department and the Tribunal in support of the applicant’s claims gave rise to concerns in the Tribunal’s mind regarding his credibility and the plausibility of aspects of his claims.

    [3] See CB180-181

    [4] CB287, [14]

15. The Tribunal also concluded that it was not satisfied that the applicant was a credible witness.[5]  The Tribunal’s reasons were based on a number of matters and considerations.  First, the Tribunal did not find credible claim that the Awami League would be seeking to harm the applicant.  The applicant is not involved in politics, he has shown no interest in becoming involved in politics.  The applicant has moved away from his local area and he is running an education business elsewhere.  The former business has closed and the family has moved away from the local area.

    [5] CB292, [27]

16. Second, the Tribunal was of the view that the applicant changed the nature of his claims.  The applicant’s initial claim was fear of harm arising from his father conducting a competing business to that of a cousin of the local secretary of the Awami league.  Later, the applicant claimed fear from the Awami League because of his own commercial success and because of his father’s political and community activities. 

17. Third, the applicant claimed before the Tribunal that his father was a BNP General Secretary of the local union for 15 years. That was inconsistent, so the Tribunal held, with the applicant stating before the delegate that the applicant’s family has no political support and that his family are respected, without political power or money.

18. Fourth, the Tribunal was of the view that the applicant manifested a number of inconsistencies in his account of what had happened in Bangladesh.  The Tribunal listed the particular inconsistencies in paragraph 18 of its reasons for decision. 

19. Fifth, the tribunal found it surprising that a person on bail, as the applicant claimed he was, would be permitted to travel to Indonesia, which is what the applicant claimed he did.

20. Sixth, the Tribunal found that the Supreme Court form was not genuine, and the Tribunal did not accept the explanation the applicant gave for why the Tribunal’s search did not contain the name of the applicant but that of another. 

21. Seventh, the Tribunal was concerned about the applicant’s delayed departure from Bangladesh, that delay being between the applicant’s obtaining his visa on 28 September 2011 but not leaving Bangladesh until 11 October 2011.  The applicant, the Tribunal had found, had given inconsistent explanations for the delay.  The Tribunal further noted that it had considered the court documents.  It noted, however, that:

    …in light of the Tribunal’s concerns about the applicant’s credibility and the country information about the prevalence of forged and fraudulent documents the Tribunal is not satisfied that these are genuine documents and therefore places little weight on them in support of the applicant’s claims. It considers that they do not overcome the concerns discussed above.

22. I now turn to the application filed in this Court.  The only grounds of review the applicant states in his application are as follows:

    (1) The decision of the Tribunal is affected by an error of law.

    (2) And failed to take into account relevant considerations. 

23. The applicant supports his application by written submissions attached to an affidavit he filed together with his application.  These submissions, detailed as they are and containing many asserted facts, attempt to respond to particular matters contained in the Tribunal’s reasons. 

24. The applicant’s intent in doing so is to demonstrate that the Tribunal was incorrect in its determination of an application of review filed by the applicant.  None of the submissions address the grounds of review contained in the application.  The applicant has also filed an affidavit in which he gives an explanation of discrepancies identified by the Tribunal in relation to documents apparently filed with the Bangladesh High Court.  Again, the purpose of this information appears to be to demonstrate the Tribunal was incorrect in the conclusions it made in relation to those documents.

25. At the hearing before me today the applicant made a number of submissions.  First, the applicant said there was an inconsistency between the Tribunal’s finding that the applicant was not involved in politics, and what the applicant says he told the Tribunal, namely that he was a member of the BNP.  The applicant said that he told the Tribunal that he supported the BNP by donating money.  Second, the applicant submitted that the changes in the nature of his claims noted by the Tribunal occurred because of mental frustration and stress from which he suffered.  Third, the Tribunal misunderstood the nature of the legal proceedings in Bangladesh to which the Tribunal referred.  And fourth, the applicant submitted that it was possible for a person on bail to leave Bangladesh.

26. The purpose of these submissions, again, is directed to showing the Tribunal was incorrect in the findings it made.  The applicant accepted that these were matters he put before the Tribunal, but the Tribunal did not accept them.  The function of this Court is not to determine whether the applicant is entitled to a protection visa.  That was a matter for the Tribunal to determine, as I informed the applicant.  The function of this Court is to entertain claims that the Tribunal made a jurisdictional error in affirming the decision of the Minister or of a delegate of the Minister.

27. In my opinion the grounds of application, unparticularised as they are, disclose no arguable case for the relief claimed in the application, nor do the applicant’s submission which he filed with his application, or the affidavit filed on 28 February 2014, or the submissions the applicant made before me today,.  Further, in my opinion it was reasonably open to the Tribunal on the material before it, and for the reasons it gave, to conclude it was not satisfied that the applicant was a credible witness, and for that reason to affirm the decision of the delegate not to grant the applicant a protection visa. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  17 July 2014