SZTTW v Minister for Immigration & Border Protection
[2014] FCCA 983
•14 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTTW v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 983 |
| 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) ss.36, 424A 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 |
| Applicant: | SZTTW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 89 of 2014 |
| 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
| Solicitor for the Respondents: | Mr Weise (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 89 of 2014
| SZTTW |
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 19 December 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 14 January 2014, 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.”
On 7 May 2014, the first respondent filed submissions in accordance with my Orders, made 3 April 2014, which helpfully summarise the applicant’s claims and evidence before the RRT and an accurate summary of the RRT’s findings and reasons. The relevant paragraphs are as follows:
“6. The applicant claimed to be a citizen of Bangladesh. He claimed to fear returning to Bangladesh by reason of his involvement with, and support for, the BNP. The applicant feared that he would be harmed in Bangladesh by Awami League officials and supporters.
7. The applicant provided certain items of documentary evidence for the purpose of supporting his claims
8. The applicant attended an interview with the delegate of the Minister on 26 February 2013 and the Tribunal listened to a recording of that interview.
9. On 19 November 2013, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant’s evidence and arguments at the hearing that were relevant to the Tribunal’s decision were summarised at DR [10]-[32].
10. At the applicant’s request, the Tribunal granted the applicant an adjournment of the review until 13 December 2013 for the purpose of providing additional supporting documentation. The applicant provided further documentary evidence on 25 November 2013.
Tribunal’s findings and Reasons
11. The Tribunal’s key findings in relation to the applicant’s claims were expressed at [27], [31], [34], and [35]. The Tribunal found that the applicant exaggerated his role and prominence in the BNP. It rejected the applicant’s claims in relation to key events said to have occurred in Bangladesh that gave rise to a relevant risk of harm to the applicant. It found that the applicant would not be active in expressing his political views in Bangladesh.
12. The Tribunal’s reasons for these findings were detailed at DR [16]-[30] and [32].
13. The Tribunal began by identifying 8 aspects of the applicant’s claims and evidence which led it to conclude that he was not a credible witness:
(a) The applicant was unable to give consistent evidence about the date of his appointment to a position of authority to which he claimed to have been appointed.
(b)The applicant’s claims in relation to his father’s position of authority were inconsistent and unpersuasive. The Tribunal’s concerns related to the timeline of events and the evidence about his father’s age at the relevant time.
(c) The applicant gave inconsistent and unpersuasive evidence about an attack on him that he claimed occurred in August 2003.
(d) The date of issue of the applicant’s passport was inconsistent with his claims.
(e) The applicant’s evidence in relation to his address and employment was inconsistent with his claims
(f) The applicant claimed to have begun receiving death threats in 1999 or 2000. The Tribunal perceived this claim to be inconsistent with subsequent events as claimed by the applicant, and found therefore the applicant’s claim to have received threats in 1999 or 2000 was not credible.
(g) the applicant returned to Bangladesh for a period in December 204. The Tribunal did not accept the reasons given by the applicant as to why he was able to return at that time despite the threat of harm.
(h) Following his departure from Bangladesh in October 2003, the applicant lived for a period in South Africa. The applicant could not explain to the Tribunal’s satisfaction why he did not seek asylum in South Africa if he departed Bangladesh for the reasons he claimed.
14. The Tribunal then made specific references to a letter submitted by the applicant as evidence in support of his claims. The Tribunal observed that the dates given in this letter were inconsistent with the applicant’s own evidence. The Tribunal also referred to country information indicating that forged or fraudulently obtained documents were readily available in Bangladesh. These considerations combined to lead the Tribunal to the conclusion that the letter was a fabrication.
15. The Tribunal went on to accept that the applicant was a support of the BNP. However, referring to country information summarised at DR [29], the Tribunal was not satisfied that merely being a supporter of the BNP was sufficient for a finding that there was a real chance of harm to the applicant in Bangladesh.
16. Finally, the Tribunal accepted that the applicant was involved with the BNP in Australia. The Tribunal disregarded this conduct in assessing the applicant’s claims against the Refugee’s Convention criteria for a protection visa, because it was not satisfied that the applicant participated in BNP activities in Australia other than for the purposes of strengthening his claim to be a refugee. For the purposes of assessment against the complementary protection criteria for a protection visa, the tribunal did not consider that the applicant’s BNP activities in Australia suggested that he would continue any activism upon return to Bangladesh, or that he would be perceived as an active supporter of the BNP if he returned to Bangladesh.
17. In accordance with these findings, the Tribunal rejected the applicant’s claim to a protection visa pursuant to the criteria in s.36(2) of the Act and affirmed the decision of the delegate.
The proceeding before this Court
The applicant was unrepresented before the Court this morning, although had 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 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 an Amended Application supported by submissions. The grounds of the Amended Application are in the following terms:
“1. The RRT made a jurisdictional error that the RRT did not give attention to the applicant’s claim for protection. The RRT did not follow the Refugee Convention to find out whether the applicant has threat to his life and liberty. The RRT did not put attention to its obligation to review under the act. The RRT was trying to find out a way that it can use to reject the applicant’s claim. The RRT did not act according to substantial of justice and the merits of the case. The RRT failed to comply with its obligation to the review applicant.
Particulars:
The applicant’s inability to provide consistent evidence about his and his father’s appointment and cessation of their respective positions raises concerns for the RRT about whether they held the positions the applicant has claimed.
2. The RRT made procedural mistakes that the RRT failed to provide the review applicant all the adverse information which is the reason or part of the reason to reject his genuine claim for protection. The applicant should get an opportunity to give explanation to the findings of the documents made by the RRT. The RRT was engaged to reject his claim. The RRT did not communicate the inconsistencies in writing to get clearer picture about his case. The applicant has fear for his life and liberty. The applicant will face significant physical harassment and ill treatment for his political activities. The applicant will face substantial financial hardship for the loss of his business. The applicant should get an opportunity to address adverse information.
Particulars:
The RRT’s findings that the applicant was not harmed and persecuted in Bangladesh as he claimed despite supporting the BNP for years.
The RRT’s finding that the letter of support has been fabricated.
The RRT’s finds that the applicant has exaggerated his role and prominence in the BNP.
The RRT is not satisfied that the applicant was an active member of the BNP.
3. The RRT made a jurisdictional error that the RRT did not assess the applicant’s review application. It is evident from the decision of the RRT that the RRT was trying to find out the inconsistencies between the applicant’s written information and his interview. There is nothing to suggest in the Refugee Convention that eth applicant’s claim for protection for his fear for life or liberty needs to give repeatedly. The RRT took the written statement of claim from the Department’s file and the interview to the DIABP and then the RRT took interview with the applicant. There is nothing in the Convention that the applicant has to be appeared many times to the authority for giving interview on the same statement. The RRT made a mistake of law and the RRT did not follow the migration act. The RRT failed to comply with its obligation to the review applicant according to the United Nation Convention. The applicant will suffer significant harm and there is a real risk for his life if he returns to Bangladesh. The RRT did not assess the claim properly which is a core task in this application. The applicant is not satisfied with the findings of the RRT.”
The grounds make many general complaints about the RRT that are not capable of reflecting jurisdictional error, however the grounds also allude to complaints of which are capable of demonstrating an error if made out. Those complaints are dealt with below.
The first respondent’s solicitor, Mr Weise, read the affidavit of the applicant, affirmed 6 January 2014 and filed on 14 January 2014, annexing a copy of the RRT’s decision record. That decision record makes clear that the RRT’s ultimate, comprehensive rejection of the applicant’s claims to be involved with the Bangladesh National Party (“the BNP”) and, as a result, fear harm from the local Awami League officials and/or supporters in Bangladesh, was based on eight identified reasons by the RRT.
Those reasons included inconsistencies in the applicant’s evidence, both internally and with country information before the RRT. The RRT found the applicant was fabricating his evidence in response to apparent concerns put to him by the RRT. The RRT also found the applicant’s responses to concerns raised by the RRT with him to be unpersuasive. The RRT also found that the applicant’s voluntary return to Bangladesh in December 2004 indicated that he did not hold any fear of harm.
The RRT also found that a letter of support provided by the applicant to have been a fabrication based on country information before it about the availability of forged and fraudulent documents in Bangladesh; as well as the inconsistencies between the information in the letter and the applicant’s own evidence. The RRT found the applicant had exaggerated his role and prominence with the BNP and ultimately was not satisfied that the applicant met the refugee criterion in s.36(2)(a) of the Act or the alternative criterion in s.36(2)(aa) of the Act.
The RRT’s adverse credibility findings were based on the unsatisfactory nature of the applicant’s evidence.
Ground 1 of the Amended Application makes general and bare assertions that do not disclose an error capable of review by this Court. The first respondent attempted to distil what those complaints may possibly involve, however, in the light of any failure to articulate any particular allegation, none of the assertions in Ground 1 are capable of establishing jurisdictional error on the part of the RRT.
Ground 2 of the applicant’s Amended Application suggests that the RRT made a mistake by failing to provide the applicant with all the adverse information which formed the reason, or part of the reason, for affirming the decision under review, and did not communicate to the applicant in writing the inconsistencies in the applicant’s evidence that caused it concern. Such complaints demonstrate a misunderstanding on the part of the applicant of the obligations of the RRT.
The particulars in support of Ground 2 allege that the information which the RRT was required to give him during the RRT hearing was in the nature of thought processes, subjective appraisals, and determinations of the evidence before it. Information, in the nature of the RRT’s subjective appraisals, thought processes, or determination in considering the evidence before it, are not matters that the RRT is required to put to the applicant for comment. Nor is the RRT’s disbelief of the applicant’s evidence arising from inconsistencies that the RRT finds to exist.
There is no information identified by the applicant that enlivens any obligation under s.424A of the Act that would have required the RRT to give the applicant such information for comment.
In such circumstances, the applicant’s claims in Ground 2 cannot be made out and do not raise an arguable case for the relief that his application claims. It is well established that the RRT’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
A fair reading of the RRT’s decision record makes clear that its adverse findings in relation to the applicant’s credibility were open to it on the evidence and material before it and for the reasons it gave.
The RRT’s credibility findings, including its adverse credibility findings, are a matter par excellence (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).
In relation to the applicant’s complaint about the RRT’s use of country information before it, 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 (see: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
Ground 3 appears to suggest an allegation of bias on the part of the RRT. A claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. However, 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 decision maker approached their task other than with a mind open to persuasion (see: 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.” (see: Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
To the extent that, either in his written grounds or oral submissions to the Court this morning, the applicant was intending to allege bias on the part of the RRT, no such complaint is made out.
The applicant told the Court this morning that the RRT did not give him a chance to support his case. Again, there is nothing on the face of the RRT’s decision record to support such an assertion.
As stated above, the applicant was given an opportunity to file evidence in support of his application, including a transcript of the RRT hearing. There is no evidence before this Court to suggest that the RRT’s decision record is not accurate. At the directions hearing on 3 April 2014, the applicant was given an opportunity to file a transcript of the RRT hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
The applicant also made general complaints that the RRT did not take his case seriously, or that its reasons given for its decision were not relevant to his claim. The applicant’s general disagreements are complaints more in the nature of a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review, which this Court cannot undertake. (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).
Ground 3 appears to make no further complaint beyond those that have been identified above and again, on its face, does not raise a particularised ground capable of review by this Court.
In oral submissions, the applicant asserted that the RRT did not inquire into his case to verify his claims. There is no general obligation on a RRT to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell 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 grounds of the Amended Application have raised an arguable case for the relief claimed.
Accordingly, the proceeding before this Court, commenced by way of application filed on 14 January 2014, should be dismissed with costs, pursuant to r.44.12(1)(a) 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-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 3 June 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Civil Procedure
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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Appeal
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