SZUAT v Minister for Immigration

[2015] FCCA 2510

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUAT & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2510

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424A

Federal Circuit Court Rules 2001 (Cth)

Minister for Immigration and Citizenship vSZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

First Applicant: SZUAT

Second Applicant SZUAU

Third Applicant: SZUAV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 677 of 2014

Judgment of: Judge Barnes

Hearing date: 7 September 2015

Delivered at: Sydney

Delivered on: 7 September 2015

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The First and Second Applicants pay the costs of the First Respondent fixed in the amount of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 677 of 2014

SZUAT

First Applicant

SZUAU

Second Applicant

SZUAV

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATI VE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 26 February 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection visas. 

2. The Applicants, citizens of Bangladesh, are husband, wife and child.  The First Applicant, the husband, made claims based on the Refugees Convention and the complementary protection criterion.  His wife and child applied only as members of his family unit.  For convenience, the First Applicant is referred to as the Applicant. 

3. In essence, the Applicant claimed to fear returning to Bangladesh because of his political opinion and activities with the Bangladesh Nationalist Party (the BNP).  The Application was accompanied by a letter dated 12 September 2012 said to be from a named secretary of a branch union committee of the BNP in Bangladesh

4. He claimed to fear that he would be killed by Awami League “goons” and arrested by the police and that this fear arose from several incidents which occurred from 1996 on. 

5. The Applicant claimed that in 1996 a group of Awami League cadres came to his house asking about his whereabouts, that they ransacked and looted the house and insulted his mother and that this led to her death.  He also claimed that he was beaten on a number of occasions and that on one occasion he was left unconscious on the side of the road.  The Applicant claimed that his hotel was attacked and ransacked.  In the departmental interview he also claimed that a week after he arrived in Australia a guest at his hotel in Bangladesh died and that as a result false charges had been initiated against him. 

6. The application was refused by a delegate of the First Respondent. 

7. The Applicant provided the Tribunal with additional supporting documents such as documents in relation to his ownership and the operation of the hotel, a copy of a newspaper report describing the discovery of a body in a residential hotel in Bangladesh and stating that the owner and employee of the hotel were in hiding, a First Information Report (“FIR”) said to list the Applicant as accused of murdering the hotel guest, a letter about the FIR and a list of seized items. 

8. After the Applicants sought review by the Tribunal, they were invited to, and the husband and wife attended, a Tribunal hearing. Following the hearing the Tribunal wrote to the Applicants pursuant to s.424A of the Migration Act1958 (Cth) (the Migration Act) inviting them to comment on or respond to certain information. The first of these letters, dated 2 December 2013, was sent by registered mail on 2 December 2013. It was returned to sender on 7 January 2014.

9. Consistent with Case Notes in the Court Book, the Tribunal recorded that on 7 and 8 January 2014 a Tribunal officer had attempted to contact the Applicants on the phone number they had provided but was unable to reach them or leave a message. However on 21 January 2014 the Applicant attended the Tribunal registry and sought a copy of the s.424A letter which had been returned to sender. A Tribunal Case Note records that the Applicant was given a copy of that letter, but told that the time for response had passed.

10. However on 5 February 2014 the Tribunal sent a fresh s.424A letter to the Applicants (in slightly amended form) giving them an opportunity to comment on or respond to detailed items of information, particularly information which appeared to indicate internal inconsistencies in the Applicant’s evidence or between the evidence that he and his wife had given, as well as what the Tribunal saw as some inaccuracies or lack of knowledge on the Applicant’s part in relation to the results of elections in which he claimed he had been involved.

11. The Applicant responded to the second s.424A letter by letter received by the Tribunal on 25 February 2014. As the Tribunal indicated in its decision, it had regard to this response.

12. In its findings and reasons the Tribunal found that the Applicant was not a credible witness for reasons which included its view that the Applicant’s evidence about his involvement with the BNP in Bangladesh was inconsistent and unpersuasive in specified respects.  The Tribunal had regard to an inconsistency in the Applicant’s claims about whether he was involved at thana level in the BNP and his failure to provide a satisfactory explanation for this inconsistency.  It also had regard to an inconsistency between his original written claim about being the organising secretary of the College Committee of the student wing of the BNP and his statement at the Tribunal hearing that he did not hold any position at college level and his failure to explain this inconsistency.

13. The Tribunal also found that the Applicant’s knowledge of elections in which he claimed to have assisted candidates was unpersuasive. It set out in some detail the extent to which his evidence about the constituencies, the candidates represented and the results of those elections was inconsistent with independent country information that had been raised in the s.424A letter. Having reviewed the recording of the Tribunal hearing the Tribunal did not accept the Applicant’s explanation that the Tribunal had misunderstood his evidence. The Tribunal was of the view that if the Applicant had been closely involved as claimed he could be expected to know the constituency the candidates represented in those elections and the results.

14. The Tribunal had regard to the Applicant’s lack of knowledge about the annual fee for membership of the BNP, the four main principles of the BNP and what the BNP flag represented.  It found such lack of knowledge surprising, given the Applicant’s claimed long history and roles at executive level.

15. The Tribunal also took into account inconsistencies in the Applicant’s claims about attacks by the Awami League, including whether or not he was attacked prior to 1997 as he had initially claimed.  It recorded that at the Tribunal hearing the Applicant had stated that the only difficulties he had before 1997 were small incidents when he was studying.  The Tribunal had regard to the absence of an explanation for why the Applicant said he only had small incidents before 1997, when initially he had claimed there was an attack on his house in 1996 which resulted in his mother’s death.

16. The Tribunal also had regard to inconsistencies (which it detailed) between the evidence of the Applicant and his wife in relation to the claimed attack in 1997, in particular as to where he was attacked, where he was on his way to and what happened thereafter.  Similarly, it found evidence in relation to his claim that he was subject to extortion by the Awami League was inconsistent.  In particular, the Tribunal found that the Applicant’s evidence to the delegate about the frequency and the extent of the claimed extortion was not consistent with his wife’s evidence to the Tribunal. The Tribunal did not find the Applicant’s explanation persuasive. 

17. Insofar as the Applicant claimed to have been attacked, harassed and threatened since 1997, the Tribunal had regard to the fact that he travelled to Europe in November and December 2011, but failed to seek asylum and voluntarily returned to Bangladesh.  The Tribunal took this to suggest that he was not persecuted at that time.  It did not find persuasive his claim that he did not seek asylum as he did not have his family with him, given that he chose to leave a child in Bangladesh when he came to Australia.  The Tribunal was of the view that a person genuinely in fear of persecution would seek protection as soon as possible and then try to find ways to bring his or her family to that area of safety. 

18. The Tribunal had regard to the fact that while the Applicant said he decided to leave Bangladesh in April 2012 because he was being threatened and subject to extortion, he did not leave on either of the visas that he held at that time for Japan or Thailand, but waited and subsequently applied for an Australian visa.  The Tribunal found that the Applicant’s failure to access protection in other countries suggested that he did not flee Bangladesh in fear of persecution.

19. The Tribunal also took into account inconsistencies (which it detailed) in the Applicant’s claim about when his mother was assaulted in Bangladesh by the Awami League. It had regard to the Applicant’s delay in coming to Australia after obtaining a visa and his inconsistent evidence as to why this occurred.

20. The Tribunal considered the Applicant’s claim that in July 2012 after he had arrived in Australia there had been a murder in the hotel he owned in Bangladesh and that as a result false charges had been laid against him shortly thereafter.  The Tribunal acknowledged that he had provided a FIR in support of this claim.  The Tribunal was willing to accept (on the basis of the documentary and the oral evidence) that the Applicant owned a hotel.  However it found that his account of a murder which resulted in charges being laid against him in July 2012 was unpersuasive, having regard to the fact that he was in Australia at the time of the death and his two business partners who were running the hotel at the time were not charged.  The Tribunal also had regard to the fact that the Applicant did not refer to this incident or to charges having been laid against him in his protection visa application lodged on 3 August 2012.

21. The Tribunal considered the letter entitled “Subject: FIR” which set out the circumstances of the murder and stated that police broke into the hotel room.  However the Tribunal had regard to the Applicant’s evidence that the hotel manager had reported the death to the police after entering the room with his spare keys.  The Tribunal observed that it would not seem necessary for the police to break into the room when the manager had a spare key.

22. The Tribunal concluded that it found these concerns so numerous and significant that it was not satisfied that the Applicant was a credible witness.  It was not satisfied that the Applicant had been truthful in his account of his involvement with the BNP in Bangladesh and the harm he claimed to have suffered as a result.  It was not satisfied he had been involved with the BNP in Australia or that he attended any of their meetings.  It found that he did not hold any position in the BNP and that he was not threatened, attacked or subject to extortion and nor was his mother attacked, his son threatened, or his hotel attacked as claimed.  Nor did it accept that the Awami League came to the Applicant’s house looking for him or ransacked or looted his house.  The Tribunal found that the Applicant had not been charged in relation to any murder in his hotel and that he was not of adverse interest to the police or the Awami League.  It was not satisfied he fled Bangladesh as a result of any fear of harm. 

23. The Tribunal considered the fact that the Applicant had provided a letter of support from a person named as the secretary of a particular branch union committee of the BNP.  However it found that the letter writer’s statement that the Applicant’s business had been “ruined” was inconsistent with the Applicant’s own evidence that the hotel was still operating successfully.  It also had regard to independent country information, said to have been discussed with the Applicant at the hearing, indicating that forged or fraudulently obtained documents were readily available in Bangladesh.  The country information and the inconsistency between the letter of support and the Applicant’s evidence led the Tribunal to find the letter had been fabricated. 

24. The Tribunal also considered the newspaper report in relation to the discovery of a dead body in a residential hotel Bangladesh.  It noted that the report did not refer to the name of the hotel or the owner and that while it stated that a murder case had been filed, it did not mention anyone as an accused. 

25. In light of the country information, the Tribunal’s credibility concerns and the late provision of the documents the Tribunal placed little weight on the newspaper report, the FIR, the letter and the seizure list and did not consider that they overcame its concerns.

26. The Tribunal was not satisfied that if he returned to Bangladesh there was a real chance the Applicant would be subjected to any harm on the basis of his political opinion or his activities or for any other Convention reason or as a result of any death in his hotel.  It was not satisfied the Applicant had a well-founded fear of Convention-related persecution in the foreseeable future. 

27. The Tribunal also considered the complementary protection criterion.  It referred to its earlier findings and to its lack of satisfaction that the Applicant had been harmed as claimed or threatened.  It reiterated that it did not consider him credible with regard to his claimed experiences and did not accept he was harmed or threatened in the past for the reasons given or that he was subject to any criminal charges. The Tribunal was not satisfied that the Applicant met the complementary protection criterion.

28. In these circumstances, the Tribunal also found that the second and third Applicants did not meet the applicable criteria as members of the family unit of the Applicant.  The Tribunal affirmed the delegate’s decision. 

29. The Applicants sought review by application filed in this Court on 18 March 2014.  There are two grounds in the application.  They are generally expressed and unparticularised.  The Applicant did not take the opportunity to file written submissions, but made oral submissions today. 

30. The first ground is that the Tribunal denied the Applicant procedural fairness at the time of the assessment of his claim because it “was biased”. 

31. An allegation of bias must be distinctly made and clearly proved.  There is nothing in the circumstances of this case to support a contention of bias in the sense of a state of prejudgment so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).

32. It is a rare and exceptional case in which actual bias can be demonstrated solely from the Tribunal’s reasons for decision (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). I asked the Applicant what led him to suggest that the Tribunal was biased. He took issue with the Tribunal’s conclusions in relation to the documents he submitted. However the Tribunal was entitled to assess the evidence before it and to attach such weight to that evidence as it saw appropriate. The mere fact that the Tribunal disbelieved the Applicant’s claims and rejected his credibility is not of itself sufficient to establish bias. The Tribunal’s credibility findings were open to it for the reasons which it gave on the material before it.

33. As set out above, the only document which the Tribunal found was fabricated was the letter of support said to be from a secretary of a branch union committee of the BNP.  It made that finding based not only on the independent country information said to have been put to the Applicant at the hearing, but also on the inconsistency between that letter and the Applicant’s own evidence.  The Tribunal’s finding in this respect is not indicative of prejudgment constituting actual bias.

34. The Tribunal considered the other documents submitted by the Applicant.  It accepted that he had provided evidence of his ownership of a hotel in Bangladesh and did not take issue with those documents.  However, for detailed reasons which it gave, it did not accept his claims to have been charged in relation to a murder in his hotel after he left Bangladesh.  It considered the supporting documents in that respect.  It outlined inadequacies in those documents.  In light of such matters, the late provision of the documents, its credibility concerns and the country information, it placed little weight on the documents provided in support of that claim.  In these circumstances, the Tribunal’s finding that such documents did not overcome its credibility concerns is not indicative of prejudgment such as to constitute bias. 

35. The First Respondent’s written submissions appear to conflate the concepts of apprehended and actual bias.  It was submitted:

    10.  In relation to ground 1, the First Respondent submits that a claim of bias can only be made out where the Tribunal’s conduct would indicate to a fair-minded and informed person that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided… (NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14] per Allsop J.) The Applicants do not indicate what aspect of the Tribunal’s conduct indicates bias.  None is apparent. 

36. In any event, there is nothing in the evidence before the Court to establish apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 considered from the perspective of the hypothetical fair-minded layperson, properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias.

37. The Applicant’s disagreement with the Tribunal’s findings in relation to the documents that he submitted is not such as to establish an apprehension of bias.  Further, insofar as the Applicant appeared to suggest that the Tribunal should have made inquiries to verify his claims, there is no general obligation on the Tribunal to make inquiries.  It has not been established that this was case in which there was a critical fact the existence of which was easily ascertained, such that the Tribunal’s failure to inquire may be seen as giving rise to jurisdictional error in the sense considered in Minister for Immigration and Citizenship vSZIAI (2009) 83 ALJR 1123; [2009] HCA 39.

38. Ground 1 is not made out. 

39. Ground 2 is a claim that the Tribunal’s decision was unjust and made without taking into account the “full gravity of the Applicant’s circumstances of the decision” (sic).  The Applicant was unable to elaborate on what he meant by this ground.  Insofar as it may be taken to be a contention that the Tribunal failed to consider an integer of the Applicant’s claims, such ground is not made out.  The Tribunal considered, but did not accept the Applicant’s claims. 

1. Insofar as the Applicant disagrees with the Tribunal’s factual findings or decision, he seeks impermissible merits review.  As indicated, the Tribunal’s credibility findings were open to it on the material before it for the reasons which it gave. 

2. As no jurisdictional error has been established on any basis contended for by the Applicants, the application must be dismissed.

3. The Applicants have been unsuccessful.  The Minister seeks that the two adult applicants pay his legal costs of these proceedings.  Initially it was suggested that the scale amount provided for in the Federal Circuit Court Rules 2001 (Cth) was appropriate. When pressed, the solicitor for the Minister conceded that this was not a particularly complicated matter. The Applicant told the Court that he had no work and could not pay costs.

4. The Applicant’s claimed circumstances are not a reason for departing from the normal principle that unsuccessful applicants should meet the costs of the First Respondent, although they may be matters to be taken into account by the Minister in determining when and how to seek to recover such costs.  Nor are the Applicant’s circumstances a basis on which the amount of costs should be reduced in the circumstances of this case and on the evidence before the Court. 

5. However, I am of the view that this is not a matter which warrants scale costs, having regard to the nature and complexity of this case compared to other similar matters.  I consider that a reasonable and appropriate amount is the sum of $4,500.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 17 September 2015