SZTTP v Minister for Immigration

[2014] FCCA 1936

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTTP v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1936

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.426

Applicant: SZTTP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 60 of 2014

Judgment of: Judge Driver

Hearing date: 26 August 2014

Delivered at: Sydney

Delivered on: 26 August 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms E Warner Knight

Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 60 of 2014

SZTTP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 13 December 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from Bangladesh, and made claims of political persecution.  He is a supporter of the Bangladesh Nationalist Party (BNP).  He claimed to have suffered harm at the hands of supporters of the Awami League and the Bangladesh police.  He claimed to fear further harm if required to return to Bangladesh.  The Minister’s delegate refused the visa application, and the applicant sought review before the Tribunal.  He appeared before the Tribunal on 1 October 2013 to give evidence and present arguments. 

3. In response to the hearing invitation, the applicant nominated two witnesses from whom oral evidence was available.  He provided their telephone contact numbers.  The applicant did not pursue that proposal at the Tribunal hearing, but queried after the hearing why his witnesses had not been contacted.  The Tribunal offered the applicant the opportunity to provide documentary evidence from those witnesses, and the applicant provided two documents after the hearing. 

4. The Tribunal accepted the applicant’s employment history, and accepted with some doubt that he was a supporter of the BNP.  However, the Tribunal did not accept the applicant’s claims of past harm, primarily because it was not consistent with his employment history, which placed him at a relatively senior level in a steelworks.  The Tribunal considered the statements provided after the hearing, but at [33] of its reasons[1], the Tribunal rejected that evidence, having regard to country information about the prevalence of document fraud in Bangladesh, and the Tribunal’s own concerns about the credibility of the applicant’s claims. 

   [1] court book (CB) 98

5. These proceedings began with a show cause application filed on 10 January 2014.  The applicant continues to rely upon that application.  There are three grounds in that application:

   1. The Tribunal failed to assess my credibility in terms of the Migration Act.

   2. The Tribunal’s decision was affected by an error in that … the Tribunal was influenced by an opinion that fraudulence documents are available in Bangladesh.

   3. The Tribunal accepted that I was in favour of BNP.  However the Tribunal failed to assess my claims that as my involvement with the BNP I may face adverse situation on my return to Bangladesh. (errors in original)

6. The applicant also relies upon an affidavit filed with his application, which I treated as a submission.  The affidavit repeats the grounds in the application.  The applicant filed a more detailed written submission on 22 April 2014. 

7. I have before me as evidence the book of relevant documents filed on 17 March 2014. 

8. In his written submissions the applicant takes issue with the Tribunal’s reasoning, which is substantially an attack upon the merits of the Tribunal decision, which is beyond the scope of this proceeding.  However, during the course of oral argument the applicant’s concerns were narrowed down to three main propositions. The first of those is that the applicant does not understand, and asserts no logical basis for, the Tribunal’s adverse credibility findings. Those findings are explained by the Tribunal at [28]-[30][2] of its reasons, and those paragraphs, in my view, provide a logical basis for the Tribunal’s conclusions.

   [2] CB 96-97

9. Secondly, the applicant is concerned that the Tribunal did not speak to his nominated witnesses.  In his response to the hearing invitation[3], the applicant nominated two witnesses and provided their telephone contact details.  The Tribunal records, and the applicant accepts, that he did not at the Tribunal hearing ask the Tribunal to contact those witnesses.  He queried the situation after the hearing.  The Tribunal explains at [19] of its reasons[4], that it did not contact the witnesses in Bangladesh because it could not be confident who it was talking to.  The Tribunal did, however, provide the applicant the opportunity to provide written statements from those witnesses. 

   [3] reproduced at CB 71 and 72

   [4] CB 94

10. Section 426(3) of the Migration Act 1958 (Cth) (Migration Act) relevantly provides that if an applicant nominates witnesses in response to a hearing invitation:

    … the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

    It follows that there is no statutory obligation on the Tribunal to contact nominated witnesses.  The Tribunal has explained in its decision its reasons for choosing not to contact those witnesses, and there is no arguable case that the exercise of discretion by the Tribunal miscarried. 

11. The applicant is also concerned at the Tribunal’s rejection of the statements he provided after the hearing from his witnesses.  That issue is dealt with briefly by the Tribunal at [33] of its reasons[5].  The Tribunal’s reasons are not as clear as they might be.  Given that the documents provided by the applicant were, in effect, witness statements rather than purported official documents of some kind, the prevalence of document fraud in Bangladesh, which the Tribunal refers to, was not likely to be a significant factor.

    [5] CB 98

12. The Tribunal, however, states that it did not accept the documents as providing reliable evidence of the facts asserted in them.  This is, to my mind, a statement by the Tribunal that it rejected the documents because of its general credibility concerns about the applicant, and because it regarded the statements as self-serving.  That conclusion was, in my view, open to the Tribunal. 

13. There is, in my opinion, no arguable case that the Tribunal failed to meet its statutory obligations of review under the Migration Act. The Tribunal, while apparently having regard to the prevalence of document fraud in Bangladesh, made a finding on the applicant’s corroborating documents that was open to it. There was no failure by the Tribunal to assess the applicant’s claims of his involvement with the BNP, and there was a logical basis for the Tribunal’s adverse credibility finding.

14. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. 

15. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant queried whether costs could be reduced, but, in my view, the scale amount is appropriate.  The applicant also asked whether costs could be waived.  I suggested that he may wish to take up that issue with the Minister’s Department. 

17. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

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

Associate: 

Date:  28 August 2014