SZUAD v Minister for Immigration

[2014] FCCA 2356

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUAD v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2356

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)

Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant: SZUAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 636 of 2014

Judgment of: Judge Driver

Hearing date: 15 October 2014

Delivered at: Sydney

Delivered on: 15 October 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Carr
DLA Piper

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 636 of 2014

SZUAD

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 17 February 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh and had made claims of political persecution.  Background facts relating to the applicant’s migration history, his protection claims and the decision of the Tribunal on them are set out in the Minister’s written submissions.   

2. The applicant is a male citizen of Bangladesh born on 23 September 1990.[1]  He arrived in Australia on 28 November 2012 as the holder of a Sponsored Family Visitor (Class UL) Subclass 679 visa.[2]

   [1] Court Book (CB) 45.

   [2] CB 48-52.

3. The applicant applied for a Protection (Class XA) visa on 2 January 2013.[3]  His claims were set out in a statement accompanying the application.[4]  The application was refused on 9 July 2013.[5]

   [3] CB 1-26.

   [4] CB 96-100.

   [5] CB 106-125.

4. The applicant applied to the Tribunal for review of the delegate's decision on 6 August 2013.[6]  The applicant's claims were set out in a Statutory Declaration, dated 5 February 2013.[7]

   [6] CB 127-132.

   [7] CB 174-175.

5. The applicant gave oral evidence before the Tribunal on 9 December 2013.[8]  The Tribunal handed down its decisions on 18 February 2014.[9]

   [8] CB 178-181.

   [9] CB 267.

The applicant's claims

1. The applicant claimed that he was a supporter of the Bangladesh Nationalist Party (BNP) from 2008 and attended political rallies and protests.  The applicant claimed that, in about 2010, he became joint secretary of the BNP and, consequently, he became a more active member and worked closely with local BNP member, Kazi Basher.  The applicant claimed that, in or around May 2012, some Awami League supporters approached the applicant and threatened him if he did not work for Mohommad Younus, Kazi Basher's political opponent.

2. The applicant claimed that, on 11 October 2012, the applicant was encouraging other BNP supporters to attend a mass procession, however, the police threatened to arrest the group.  The applicant further claimed that on 12 November 2012 he organised another protest and the Awami League threw stones only at the applicant.  The applicant claimed that he was badly bruised and had to seek medical attention.  The applicant claimed that he confronted members of the Awami League, however, the police intervened and threatened to arrest the applicant on false charges.  After this incident the applicant claimed that he remained indoors but received threats over the telephone.

3. The applicant claimed that, since his arrival in Australia, Mr Basher was arrested and detained and the police had attended his residence in Bangladesh with a warrant for the applicant's arrest.

The decision of the Tribunal

1. The Tribunal found that the applicant was not a witness of truth.[10]

   [10] See [38] at CB 275.

2. The Tribunal found that the applicant had given inconsistent evidence regarding his appointment to a position within the BNP,[11] the circumstances regarding being targeted by the Awami League in May 2012,[12] the attack by the Awami League in November 2102,[13] the circumstances of the applicant going into hiding,[14] and the false charges made against him.[15]

   [11] See [13]-[19] at CB 271.

   [12] See [20]-[22] at CB 272.

   [13] See [24] - [27] at CB 272-273.

   [14] See [28]-[30] at CB 273-274.

   [15] See [31]-[36] at CB 274-275.

3. Consequently, the Tribunal was not satisfied that, the applicant held a position within the BNP, he was involved in organising protests, he was assaulted or threatened by Awami League members, he was forced to go into hiding, or that false charges were made against him.[16]

   [16] See [38] at CB 275.

4. The Tribunal further found that, the knowledge possessed by the applicant of the BNP was learned and was not commensurate with someone who claimed to be an active member.  Consequently, in light of the Tribunal’s findings on credibility, the Tribunal was not satisfied that the applicant had been active in the BNP or would be an active member if returned to Bangladesh.[17]

   [17] See [39] at CB 275.

5. The Tribunal also noted that the applicant had not provided any evidence to support the claim that he was active in the BNP Australia, despite assuring the Tribunal that such corroborative evidence would be provided.  Consequently, in light of the credibility findings made, the Tribunal was not satisfied that the applicant had been an active member of the BNP Australia as claimed.[18]

   [18] See [40] at CB 276.

6. The Tribunal accepted, on the basis of country information, that there was political violence in Bangladesh and that this had increased since the elections in January 2014.  However, for reason that it found that the applicant was not a BNP member or supporter and, that he would not participate in the BNP if returned to Bangladesh, it did not accept that the applicant would be harmed as a result of this violence.[19]

   [19] See [41] at CB 276.

7. Consequently, the Tribunal was ultimately not satisfied that the applicant was a person to whom Australia owed protection obligations.[20]

   [20] See [42]-[43] at CB 277.

8. In addition to the court book, I have before me as evidence two affidavits by the applicant.  The first simply identifies the Tribunal decision and the applicant and makes a submission in relation to the Tribunal decision.  The second introduces what purports to be transcripts of the interview before the Minister’s delegate and the hearing before the Tribunal.  The Minister objected to the receipt of the purported transcripts as evidence, both on the basis of relevance and because of a lack of verification of authenticity.  Because the transcripts may not have been professionally prepared, although there is some indication of professional preparation, I received the affidavit and annexed transcripts as an aide mémoire.  As matters transpired, no issue concerning the conduct of the Tribunal hearing arose for consideration.  

9. The applicant relies upon his show cause application, filed on 14 March 2014.  The grounds in that application are:

   1.    The Tribunal made an error in miscalculating my application.

   2.    The Tribunal made an error in saying that “the applicant was approached attacked or threatened” without any evidentiary proof.

   3.    The Tribunal made decision on assertion not on the paper. As such the Tribunal made an error in this case.

   4.    The Tribunal failed to consider the current situation prevails in Bangladesh.

10. Only the Minister took advantage of the opportunity to prepare written submissions. 

11. In his oral submissions the applicant made clear that he is not satisfied with the outcome before the Tribunal.  He is concerned, in particular, that his claims of political involvement were not believed.  He is concerned that he was hampered by a lack of documentary evidence to support his claims.  That lack, however, was not the fault of the Tribunal.  The applicant also stated that he was mentally stressed at the time of the Tribunal hearing.  He conceded, however, that he had not sought medical attention for any ailment. 

12. The applicant sought more time in these proceedings to introduce additional documents.  It would appear that the applicant had in mind that he might be able to obtain documents to support his claims for protection.  I explained to him that such documents would not assist me, as they were not before the Tribunal. 

13. The applicant’s dissatisfaction with the Tribunal decision does not rise above a dispute over the merits of that decision.  The grounds in the show cause application are dealt with thoroughly by the Minister in his submissions.  I agree with and adopt those submissions. 

Ground 1 and Ground 3

1. Contrary to what is asserted, the Tribunal clearly understood the applicant's claims and evidence before it and the reasons it gave were open to it to make.

2. At [13]-[36] of the Tribunal's decision record, it set out each of the applicant's claims and the evidence given in respect of those claims at different stages of the review process.  However, these claims were wholly rejected for reason that the Tribunal found that the applicant was not a witness of truth.  This finding was open to the Tribunal to make as decision-maker par excellence.[21]

   [21] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.

3. Further the Tribunal set out in its decision record the documents proffered at different stages in the review process in support of his application.  The weight attributed to these corroborating documents was a matter for the Tribunal only.[22]  Particularly, the findings made by the Tribunal at [19] and [36] that some of the documents proffered by the applicant were fraudulent, was open to the Tribunal to make on the country information before it.

   [22] WAEE v Minister for Immigration (2003) 75 ALD 630.

4. Grounds one and three do not raise an arguable case for the relief sought.

Ground 2

1. Ground 2 takes issue with [23] and [41] of the Tribunal's decision record where it relevantly recorded that:

   23. The Tribunal is not satisfied that the applicant was approached, attacked or threatened in a teashop by the Awami League as he has claimed.

   …

   41… However, as the Tribunal does not accept that the applicant was approached, attacked, threatened, forced to go into hiding or had false charges laid against him and the Tribunal has found that the applicant is not a BNP member of supporter, does not hold a position in the BNP and would not participate in the BNP if he was to return to Bangladesh, the Tribunal does not accept that there is a real chance he would be harmed as a result of this political violence or for any other reason.

2. As noted above, it was open to the Tribunal as decision-maker par excellence to find the applicant was not a credible witness and, therefore, it was open to the Tribunal to wholly reject the factual basis of the applicant's claims and find that the applicant was not approached, attacked or threatened by the Awami League.

3. Consequently, Ground 2 does not raise an arguable case for the relief sought.

Ground 4

1. Ground 4 must fail at a factual level.

2. At [41] of the Tribunal’s decision record, the Tribunal noted that it had received country information and accompanying detailed submissions from the applicant's representative in regards to the persecution of BNP activists and members in Bangladesh.

3. The Tribunal accepted that there is a frequent occurrence of political violence in Bangladesh and that violence had increased since the election in 2014.  However, as indicated above, it did not accept the applicant was a witness of truth and consequently did not accept that the applicant had been or would be involved with the BNP if returned to Bangladesh.

4. On the basis of this finding, and country information before it, it was open to the Tribunal to find that there was not a real chance that the applicant would be harmed as a result of the political violence or for any other reason if returned to Bangladesh.  This finding was open to the Tribunal to make on the material and evidence before it and for the reasons it gave.

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

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant claimed impecuniosity and sought information about options for payment by instalments or waiver.  I explained to the applicant what options might available in relation to those matters.  Impecuniosity is not a reason for the court to refrain from making a costs order.

7. 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 thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  16 October 2014