SZTRW v Minister for Immigration and Border Protection
[2014] FCA 1246
•21 November 2014
FEDERAL COURT OF AUSTRALIA
SZTRW v Minister for Immigration and Border Protection [2014] FCA 1246
Citation: SZTRW v Minister for Immigration and Border Protection [2014] FCA 1246 Appeal from: SZTRW v Minister for Immigration & Anor [2014] FCCA 1696 Parties: SZTRW v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 853 of 2014 Judge: PERRAM J Date of judgment: 21 November 2014 Legislation: Migration Act 1958 (Cth) ss 425A and 441A Date of hearing: 14 November 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 23 Counsel for the Appellant: The appellant was self-represented. Counsel for the Respondents: Mr M Smith Solicitor for the Respondents: DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 853 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTRW
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
21 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 853 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTRW
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE:
21 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
A Introduction
This is an appeal from the Federal Circuit Court. That Court dismissed the appellant’s application for constitutional writs directed to the Refugee Review Tribunal (‘the Tribunal’). The appellant had applied to the Minister for Immigration and Border Protection for a protection visa which had been refused by one of his delegates. The Tribunal on review affirmed that decision.
In my opinion, no errors were made by the Federal Circuit Court in dismissing the appellant’s case and the appeal to this Court should also be dismissed.
B The background to the case
The appellant is a 25 year old Bangladeshi. He first arrived in Australia on 2 July 2007 on a student visa. He had completed his HSC in Dhaka in 2006. Once in Australia he obtained a number of further qualifications. According to his visa application he was awarded in 2009 a Diploma of Accounting from the Cornell Institute, a Certificate III in Hospitality from the Evolution Institute in 2010 and an Advanced Diploma of Business from the Australis Institute in 2012. From 2007 until mid-2012 he worked as a chef in an Indian restaurant. On three occasions during the same period the appellant returned to Bangladesh for, as his application called it, a ‘study break’. Both of his parents and four of his siblings continue to live in Bangladesh.
On the application form for the protection visa the appellant stated that he had not experienced harm in Bangladesh. Under the question ‘What do you fear may happen to you if you go back to that country?’ the appellant said:
‘Refer submission attached
We rely upon
a) Invoking Minister’s residual discretion and
b) If valid complimentary claim’
Under the question ‘Who do you think may harm/mistreat you if you go back?’ he wrote:
‘Have caused significant upset and turmoil in my family. Have failed to achieve completion of studies at great cost to me and my family.’
He set out the harm he feared in these terms:
‘Refer submission attached
1) Family disappointed and upset you did not complete your studies
2) Family provided much money to support you from savings
3) Applicant feels a deep sense of shame and embarrassment and humiliation
4) Applicant further believes has complied with all student requirements.’
Whilst one can certainly see that the appellant may well be in trouble with his parents – possibly big trouble – it is too much to think that this generates any rights of protection under the Convention. The delegate who examined the matter thought the appellant’s claims did not amount to claims for a Convention reason and it is difficult to see that she could possibly be wrong in this regard. Consequently, her finding that the appellant did not have a well-founded fear of persecution is unassailable. The delegate went on to consider whether there were any complementary protection obligations but did not think that the appellant being in trouble with his parents was sufficient.
The appellant then applied for a review by the Tribunal. Having looked at the material it came to an adverse view about the review application which required it to invite the appellant to a hearing. It sent such an invitation to the appellant by registered post to the address he had supplied but it was returned unclaimed. Subsequently the appellant spoke on the phone with an officer of the Tribunal and provided a new address to which the invitation to a hearing was then dispatched. Despite that he did not attend the hearing. In the Federal Circuit Court he accepted under cross-examination that the real reason he did not go to the Tribunal’s hearing was that he had nothing further to say to the Tribunal beyond what had been said in a letter written by his solicitor to the Department. I return to that letter shortly.
In the meantime, I do not think that the fact that when the notice was first sent it was returned unclaimed has any practical consequences. This is because it was sent to him at the correct address following the telephone call with the Tribunal officer and because he did not attend the hearing as he had nothing to add to what had already been said in the letter. There was no procedural unfairness in any of this and the Tribunal complied with the notice requirements prescribed by ss 425A and 441A of the Migration Act 1958 (Cth).
The solicitor’s letter said this (relevantly):
‘…
The Applicant concedes there are not persecutory claims. However, in terms of Complementary Protection, if relevant, the Applicant asserts he has been devastated by virtue of the cessation of his studies, as it has been a source of deep humiliation and embarrassment with respect to his family. He believes that his standing with members of his family, particularly his father, has diminished, particularly considering the tremendous costs of pursuing his studies in Australia.
The situation is exacerbated by virtue of full payment of college fees at the last college he attended, which has led, as we understand, to the issue of the confirmation of enrolment. He also paid for the overseas student health cover (OSHC) and provided evidence as to his previous studies in English.
…’
This letter effectively conceded there was no claim under the Convention and asserted a complementary protection claim only in the most tentative way.
The Tribunal was unpersuaded that any persecution for a Convention reason was suggested and found the appellant was not a refugee. It rejected the complementary protection claim on the basis that the embarrassment and humiliation which the appellant might feel on being reunited with his parents was not the kind of negative sensation to which the complementary protection regime was directed.
C The Federal Circuit Court
The Federal Circuit Court rejected all four of the appellant’s grounds for constitutional relief.
The first ground was that the Tribunal failed to consider whether he would be harmed if returned to Bangladesh. The Court concluded that the Tribunal did have regard to the humiliation and embarrassment which he said he would suffer but simply did not think it was either for a Convention reason or sufficiently serious. In this the judge was plainly correct.
The second part of the first ground was that there had been a procedural default with the way in which the invitation had been issued to him. I agree with the primary judge that no such procedural default arose. Given that the appellant did in fact get the notice and chose not to attend because he had nothing to add (to a letter in which conceded he had no case), even if I were satisfied there were a problem relief would have to be refused on a discretionary basis.
The second ground appeared to be a claim that the Minister should use his residual discretion. As the Court below correctly noted this was not something with which the Tribunal could meaningfully engage.
The third ground was that the Tribunal had failed to consider the appellant’s circumstances. Since it demonstrably had there was no substance to this contention which the Court below correctly dismissed out of hand.
The fourth ground was that the Tribunal failed to grasp that the appellant was in a situation where he could not disclose the information about his claim for protection because of the nature of the claim. The Court below examined this contention and dismissed it as being of no merit.
The Court below also considered an additional issue that had been raised by the appellant in written submissions, namely that he did not attend the Tribunal hearing because he was worried the Tribunal would ‘reveal his secrets’. In light of the evidence elicited from the appellant during cross-examination, the judge below found that the real reason the appellant did not attend the Tribunal hearing was that he had nothing further to say.
D The appeal to this Court
Three errors were suggested in the judgment of the Federal Circuit Court. First, it was said that it was not open to the Tribunal to conclude that the appellant would not suffer harm if returned to Bangladesh. Where the suggested harm was embarrassment with his parents for not completing his studies, this is a ridiculous contention which I reject.
Secondly, an attack was made on the procedure adopted by the Tribunal. The only procedural difficulty with the hearing was the return of the notice. However, the notice was sent to his new address after he spoke by telephone with an officer of the Tribunal so that this point can go nowhere even taking the most lenient view. Further, it was the appellant who chose not to attend the hearing because he had nothing to say.
Thirdly, it was said that the Tribunal did not act independently. It was this lack of independence which was then said to be the reason why the appellant did not disclose the basis of his claim to it. I do not accept this. The appellant accepted in the Federal Circuit Court that he had nothing to say beyond the solicitor’s letter and that is why he did not attend. It is creative now to suggest that it was all the Tribunal’s fault but the point fails at the threshold due to an inability to identify any conduct on the Tribunal’s part which suggested a lack of independence.
E Conclusion
The appellant’s claim for a protection visa on the basis that he might face harm from his parents for not completing his studies should not have been lodged. The appeal to this Court is also hopeless and should not have been brought. I dismiss it and order the appellant to pay the first respondent’s costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 21 November 2014
0
0
1