SZTRG v Minister for Immigration & Border Protection
[2014] FCCA 982
•14 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTRG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 982 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.36 Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases Cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZTRG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3132 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 14 May 2014 |
| Date of Last Submission: | 14 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2014 |
REPRESENTATION
The applicant appeared in person with the assistance of a Bengali interpreter.
| Solicitors for the Respondents: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3132 of 2013
| SZTRG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal, dated 5 march 2013 (“the RRT”).
The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 16 December 2013, be dismissed on the basis that the applicant has not raised an arguable case for the relief claimed.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The proceeding before this Court
The applicant was unrepresented before the Court this morning with the assistance of a Bengali interpreter.
On 3 April 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, by 28 April 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 28 April 2014.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Rules.
On 28 April 2014, the applicant filed two documents; one headed Amended Application; the second headed applicant’s submissions. The submissions, in large part, repeat the grounds of the Amended Application, save for the background provided at the outset of the submissions.
The first respondent filed submissions on 6 May 2014, in accordance with my directions made on 3 April 2014. The first respondent’s submissions address, in some detail, the 26 paragraphs identified by the applicant in his submissions as being the applicant’s complaints in respect of the hearing. The first respondent read the affidavit of the applicant, affirmed and filed 16 December 2013, annexing a copy of the RRT’s decision record, dated 5 March 2013.
The grounds of the Amended Application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds. The grounds were repeated in a written submission filed by the applicant in support of his application. There are 26 numbered paragraphs to that document, which are largely unparticularised assertions of error and statements of findings with which the applicant disagrees.
It is difficult to distil the particular complaints made by the applicant. I accept that the first respondent’s submissions have attempted to do so and for the sake of completeness I set out below those relevant parts of the first respondent’s written submissions in relation to the grounds of the Amended Application and the first respondent’s submissions in response, with which I agree. Those submissions are as follows:
“Ground One
The first ground alleges that the RRT acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations. The particulars relating to the claim begin by stating the RRT unreasonably raised doubt over the applicant's political activities and the membership of BNP and then goes on to repeat the applicant's claims and submissions.
To the extent that the first ground alleges that the claims detailed in the particulars were not considered, the first respondent submits that they were.
At paragraph [58] of the RRT's decisions, the RRT identifies the applicant's claims to fear harm in Bangladesh as being related to the Convention reason of his political opinion as a member of the BNP, and his membership of a particular social group consisting of the BNP. At paragraph [60] the RRT considered the applicant's claims of involvement in the BNP at length. At [61] - [62] the RRT considered the applicant's level of political involvement with the BNP and found that the applicant never had, nor now has a profile as a political activist which would expose him to a real chance of serious harm. On the basis of this finding, at [63] - [64] of the RRT decision the RRT assessed the applicant's claim to fear harm as a result of his particular social group, consisting of the BNP and rejected it.
Otherwise the first respondent submits that the applicant takes issue with the merits of the RRT decision. To the extent that where the applicant refers to the "unreasonable assumption" of the RRT, the applicant takes issue with the credibility finding of the RRT,[1] this was a factual determination for the RRT.[2]
[1] CB 271 [60]
[2] Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407, 423 [67]
Ground Two
The second ground alleges that the RRT fell into jurisdictional error when it intentionally asked several irrelevant questions to undermine his political activities and his role as an assistant leader within the BNP Party Organisation and that the RRT failed to identify accurately the particular social group namely member of BNP. The particulars of the ground go on to complain that the RRT misunderstood his claims and that the delegate was biased and not impartial.
In terms of the first limb of this ground, that the RRT asked irrelevant questions, the applicant has not provided particulars of the questions and it was open to the RRT to explore all aspects of the applicant's claims. The applicant has not provided any evidence (such as a transcript) to make out the allegation made in these grounds. In these circumstances, the Court should rely upon the RRT's summary of the hearing contained in its decision record as evidence of what was said at the hearing.[3] The first respondent submits that there were no irrelevant questions asked.
In terms of the second limb, that the RRT failed to accurately identify the particular social group namely member of BNP, this was expressly identified, and considered at paragraphs [63] to [64] of the RRT's decision. At [64] the RRT states "I do not accept there is a real chance that the Applicant would suffer serious harm in Bangladesh as a member of the BNP, even if that Party can be said to constitute a particular social group."
In terms of the third limb, that the delegate was biased, on the face of the decision record there is no basis for an allegation of bias.
Ground Three
The third ground is difficult to understand. It reads in full:
The applicant claims that the RRT made a jurisdictional error when it made decision on assumption and probability. The Tribunal's finding of reasons is confused and test for persecution was not applied according to the rule of the Migration Act.
Particulars:
The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant. The Tribunal ignored all other independent information and came on the conclusion. The RRT made unreasonable doubt about applicant's documents related with his case.
In so far as the applicant may be taken to suggest that the RRT has misapplied the test for persecution as contained in the Act, the test for persecution as set out in the Act is limited to section 91R and the RRT has identified, and correctly summarised the relevant law in the present matter at [10]-[11].
[3] NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Other
The first respondent notes that at the first court date on 3 April 2014 the applicant raised an issue regarding the interpreter at the RRT hearing. The applicant was put on notice at the first court date that to substantiate such a claim the applicant would be required to put on evidence regarding the interpretation. However no evidence has been provided and the claim was no raised in the amended application or the applicant's submissions.
In the event that the applicant intends to pursue that claim the first respondent submits that such a claim cannot be made out. To establish a jurisdictional error (being a breach of section 425) arising from inadequate interpreting at the RRT hearing, an applicant needs to establish:
1. That the standard of interpretation at the RRT hearing was so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal; or
2. Errors made by the interpreter at the RRT hearing were material to the conclusions of the Tribunal adverse to the applicant.[4]
[4] Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230, [17] (Mansfield and Selway JJ).
The applicant said that he relied on his written submissions. I asked the applicant if there was anything further that he wished to say in support of his application generally, and the applicant proceeded to restate his claims. I explained to the applicant that it was not for this Court to consider his claims, and that the issue before the Court this morning was whether or not the grounds of his application raise an arguable case for the relief claimed by identifying an error that may go to the RRT’s jurisdiction.
Whilst the applicant’s complaints number some 26 paragraphs, none of those paragraphs raise an arguable case for the relief claimed.
The applicant claimed to be at risk of harm in Bangladesh from Awami League members by reason of his high profile membership of the Bangladesh National Party (“the BNP”). A fair reading of the RRT’s decision record makes clear that the RRT explored the applicant’s claims with him in some detail at a hearing and put to the applicant concerns it had about his evidence and noted the applicant’s responses. The RRT Member identified with particularity the country information to which it had regard and, in the findings and reasons section of its decision record, the RRT made adverse credibility findings in respect of the applicant’s claims.
The RRT noted that the applicant’s responses at hearing about the BNP did not reflect a level of knowledge which might be expected of a person who had the level of involvement that he claimed to have involved. The RRT found that the applicant’s evidence was inconsistent with country information before it. The RRT found that the applicant’s evidence in his responses demonstrated a “clear indication of improvisation”. The RRT found, generally, that the explanations given by the applicant to concerns raised by it were either implausible or unpersuasive.
In relation to documents that appeared to be media reports provided by the applicant, the RRT noted that no translations were provided. In relation to a letter submitted by applicant, the applicant asserted it was signed by two BNP figures testifying as to his political leadership and the dangers he faced. The RRT found the letter was not signed and, in the light of country information before it regarding the availability of false or fraudulent documents in Bangladesh, the RRT determined to give no weight to the letter and to the untranslated media reports.
The fact that the RRT rejected the applicant’s evidence and the genuineness of his documents does not constitute a failure to consider the applicant’s claims and evidence. As the High Court of Australia said in Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122 at [35]:
“Whether the letters were “highly supportive” or “powerfully corroborative” (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.”
The RRT also claimed to be at risk of harm as membership of a particular social group, being a member of the BNP. However, ultimately, the RRT did not accept that the applicant was a member of the BNP, rather, the RRT accepted that he was a supporter of the BNP. The RRT did not accept that the applicant ever had a profile as a political activist that would expose him to a real chance of harm in Bangladesh. For those reasons, the RRT found that the applicant did not meet either the refugee criteria in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), or the alternative criteria in s.36(2)(aa) of the Act.
The applicant’s grounds essentially cavil with the adverse findings and conclusions of the RRT. The RRT’s credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547). There is nothing on the face of the RRT’s decision record to suggest that those adverse findings were not open to it on the evidence and material before it and for the reasons it gave.
The RRT’s adverse credibility findings were based on the unsatisfactory nature of the applicant’s evidence and independent country information. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
To the extent that the grounds cavil with the RRT’s findings in relation to whether the applicant was a member of a particular social group, the grounds misunderstand the findings made by the RRT; that the applicant was not a member of the BNP and, therefore, even if such a particular social group existed, the applicant was not a member of it. The findings and reasons the RRT gave in its decisions record appear to be open to it on the evidence and material before it and for the reasons it gave.
To the extent that the applicant’s grounds make a bare allegation of bias on the basis that the applicant asserts that information collected by the delegate of the first respondent (“the Delegate”) was biased and not impartial, and that the RRT simply followed the decision of the Delegate, an allegation of bias is serious and demands evidence.
In an allegation of bias, at least a transcript of the RRT hearing would usually be required. It is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision, and the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the RRT approached the task other than with a mind open to persuasion, and I refer to SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
A fair reading of the RRT’s decision record does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
Whilst I make no final decision on whether or not the RRT’s decision is affected by a jurisdictional error, in relation to the applicant’s assertion of bias, a fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is nothing to suggest in the RRT’s decision record that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT might not have brought an impartial mind in determining the application for review. In support of those propositions, I refer to Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32], and NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115].
Similarly, to the extent that the grounds make a bare assertion of, or suggest some lack of, procedural fairness, nothing is apparent on the face of the RRT’s decision record to support such an allegation. Section 422B of the Act states that Part 7 of Division 4 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. There is nothing in the decision record, nor is there any particularised claim by the applicant, to suggest that the RRT did not comply with its obligations under Part 7 of Division 4 of the Act.
None of the grounds identify a jurisdictional error on the part of the RRT and appear more to be disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court commenced by way of application, filed on 16 December 2013, and reflected in the grounds of the Amended Application, filed on 28 April 2014, should be dismissed with costs pursuant to r.44.12 of the Rules, on the basis that none of the grounds raise an arguable case for the relief claimed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 27 May 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Jurisdiction
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