SZUCH v Minister for Immigration

[2015] FCCA 3030

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUCH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3030

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.32, 424A, 425, 476

Judiciary Act 1903 (Cth), ss.39B, 475A
Migration Litigation Reform Act 2005 (Cth)

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46

Applicant: SZUCH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 773 of 2014

Judgment of: Judge Nicholls

Hearing date: 10 July 2015

Date of Last Submission: 10 July 2015

Delivered at: Sydney

Delivered on: 12 November 2015

REPRESENTATION

Applicant: In Person

Solicitor for the Respondents: Ms D Watson of Australian Government Solicitor

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 25 March 2014 and ultimately amended on 18 June 2014 is dismissed.

3. The applicants pay the first respondent’s set in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 773 of 2014

SZUCH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 25 March 2014, and amended on 18 June 2014, seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 24 February 2014 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa (“the visa”) to the applicant.

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister, tendered to the Court as “RE1” (“the Court Book” – “CB”), and the applicant’s affidavit of 18 June 2014, which I note annexes material already in evidence, as contained in the Court Book.

2. The following background can be ascertained from the evidence before the Court. The applicant is a citizen of Bangladesh. He arrived in Australia on 5 October 2012 as the holder of a business visa (CB 32 and CB 33). He applied for a protection visa on 18 October 2012. He was assisted by a registered migration agent and lawyer (CB 1 to CB 44).

3. The applicant claimed to fear harm on the basis of his political opinion. He claimed to have been associated with the Bangladesh National Party (“BNP”), and to have held a senior position in this party. In particular, he claimed to have been involved, on behalf of the BNP, in elections since 1991, and to have participated in protests, and related activities, in 2011 and 2012.

4. The applicant also claimed to be a member of particular social groups which were variously described by his then representative as “member of a family unit of BNP members”, “businessman having opposition political affiliation as a Member and support of BNP” and “BNP supporters and members facing extortion and harm from the Awami League miscreants” (see CB 45).

5. The applicant feared harm from the BNP’s opponents, the Awami League (“the AL”), and claimed that he had been threatened and intimidated by the AL. He claimed to have participated in a number of political events, including the “Long March” from Dhaba to Chittagong in October 2011. He also claimed to have been robbed of a large amount of money by a criminal gang supported by the AL. Further, that his property had been occupied by his opponents. He feared harm on return because of what he said was his local political profile.

6. The Minister’s delegate refused to grant the applicant a protection visa on 8 February 2013 (CB 186 to CB 211). The delegate’s decision turned on what were said to be “serious doubts about the credibility” of the applicant’s claims (CB 201.7). The delegate was not satisfied that the applicant would be targeted for reason of his political opinion if he were to return to Bangladesh.

7. The applicant applied for review to the Tribunal on 15 March 2013. He was again represented by the same migration agent and lawyer (CB 212 to CB 218). The applicant attended a hearing before the Tribunal on 25 November 2013. His representative was present (CB 231). Following the hearing the Tribunal wrote to the applicant twice inviting his comment on, or response to, certain information which it said would be the reason, or a part of the reason, for affirming the delegate’s decision (19 December 2013, see CB 237 to CB 239, and 28 January 2014, see CB 250 to CB 251). The applicant responded to both (CB 247 to CB 248 and CB 254).

8. The Tribunal affirmed the delegate’s decision (CB 256 to CB 272). The Tribunal found that the applicant was not a credible witness ([12] at CB 259). This finding was based on a large number of matters. These are conveniently summarised in the Minister’s written submissions, which I will adopt for the purposes of this judgment (at [10] – [11]):

   “[10] The Tribunal did not believe the applicant’s claims for protection. It found that the applicant was not a credible witness based on the applicant’s inconsistent, unpersuasive and / or changing evidence regarding the following matters:

   a) when he ceased to be the General Secretary of the BNP and for how long he held that position

   b) who he had informed about his travel to Australia

   c) when false charges were laid against him in Bangladesh

   d) his BNP activities and involvement in election campaigns

   e) when he was robbed and how he knew that his attackers were members of the Awami League

   f) his lack of knowledge of the basic information in the BNP Constitution

   g) when and why he decided to depart Bangladesh permanently

   h) when he sold his business in Bangladesh.

   [11] The Tribunal also found that the applicant’s evidence regarding the Long March was inconsistent with country information.”

   [Citations omitted.]

9. In essence, the Tribunal’s concerns arose from what it found to be the applicant’s inconsistent, unpersuasive and changing evidence. The Tribunal found its concerns were “so numerous and significant that it [was] not satisfied that the applicant [was] a credible witness” ([35] at CB 265).

10. The Tribunal had doubts about the genuineness of documents submitted by the applicant said to be in support of his claims (see [36] at CB 265 to [39] at CB 266). The Tribunal noted in its decision record various concerns with the documents and subsequently gave little, or no, weight to them.

11. The Tribunal rejected the applicant’s factual assertions about his situation and events in Bangladesh. It found he was not a member of the BNP, and that he had not been attacked, threatened or robbed by the AL. It found he would not participate in BNP activities if he were to return to Bangladesh. It found that there was no real chance of his being harmed for the reasons he had claimed ([40] at CB 266).

12. The Tribunal also considered his claimed activities in Australia involving the BNP. It found that he had participated in these activities for the sole purpose of strengthening his refugee claims ([42] at CB 266). It, therefore, disregarded this conduct in relation to its consideration of the criterion for the protection visa at s.36(2)(a) of the Act.

13. The Tribunal accepted that political violence occurred frequently in Bangladesh. However, it did not accept that the applicant would be harmed as a result of this, and found that any thread of “generalised harm” was a danger faced by the general population in Bangladesh. It found the applicant did not satisfy the criterion at s.36(2)(a) of the Act ([44] at CB 267 to [47] at CB 268).

14. The Tribunal also considered the criterion at s.36(2)(aa) of the Act. It was not satisfied that the applicant would suffer “significant” harm ([48] – [52] at CB 268).

Application Before the Court

1. As set out above, the applicant sought to file an amended application. That document is said to be an application under the Judiciary Act 1903 (Cth) (“the Judiciary Act”) pursuant to s.39B, and s.475A of the Act.

2. What is immediately apparent is that s.39B of the Judiciary Act relates to the original jurisdiction of the Federal Court of Australia and is not relevant to this Court’s jurisdiction. Further, s.475A of the Act was repealed in 2005 (see Migration Litigation Reform Act 2005, No 137, 2005). The applicant explained that a “friend” had drafted this document for him. He was unable to assist with any further explanation. In any event, I proceeded on the basis that, by his amended application, the applicant sought to invoke this Court’s jurisdiction pursuant s.476 of the Act, as indicated in his initial application to the Court.

3. The grounds of the amended application are in the following terms:

   “1. The applicant claims that the Refugee Review Tribunal (the Tribunal) made a mistake that it failed to mention clearly in its findings and reason number of aspects which are the reasons to reject the genuine protection application of the applicant. The applicant also was not given opportunity to explain the concerns of the Tribunal about his claim. The Tribunal had concern about a number of aspects of the applicant’s claims which leads it to find that he is not a credible witness but the applicant gave honestly and truly his evidence to the Tribunal and the Tribunal does not have any proof of its claim. The Tribunal’s finding of changing evidence of threat is not right. The applicant was receiving threats. The knowledge about the constitution to find out whether the applicant has fear for his life for his political opinion is a wrong finding.

   2. The Tribunal made a procedural mistake that it failed to provide an explanation to the applicant the reason why his claim was treated as a Chinese claim despite his request to the Tribunal. The Tribunal’s letter to the applicant changed the applicant’s nationality. The applicant believes that the claim was not look after properly by the Tribunal and that’s why his claim is rejected. The applicant also thinks that when he asked the Tribunal in writing that he did not quite understand why this Chinese was written to the letter to the applicant the Tribunal did not reply of that. The Tribunal did not assess the claim properly. The Tribunal was busy to reject the claim on the basis of the mistakes on documents and evidence but it did not check its own mistakes. The letter to the applicant dated 19 December 2013 by the Tribunal for Invitation to comment on or respond to information mentioned in its last paragraph that,’ If the Tribunal relies on this information in making its decision it would find that you do not hold any fears about returning to China as you have claimed but have fabricated those claims in order to remain in Australia. The Tribunal would find that you are not owed protection. The applicant did not get any reply when he sent his reply to the Tribunal. The Tribunal made mistakes here.

   3. The Tribunal made a procedural mistake that the Tribunal failed to comply with the Migration Act 1958. The Tribunal did not give the applicant an opportunity to address adverse: findings and reasons which are the reason or part of the reason to reject his genuine review application. The Tribunal provided incorrect information in its decision.

   Particulars: The applicant’s claimed participation in the Long March is inconsistent with the country information about that march and the Tribunal finds that the did not participate in the Long March from Dhaka to Chittagong.

   ‘BNP takes road march to Ctg’ The daily Stay 9 January 2012’ There is no paper in this name in Bangladesh.

   Article 6(b) (9) of Bangladesh National Party Constitution.

   The Tribunal used and relied on very old information to make its decision. In page 10 of its decision the Tribunal used information- 26 July 1988, 8 August 2005, 11 August 2009 and 20 September 2010”

   [Errors in the original.]

4. The applicant appeared in person before the Court. He was assisted by an interpreter in the Bangla language. He filed written submissions, which in essence repeated, but did not substantially add to, or explain, the complaints in the amended application.

Consideration

1. In his oral submissions, the applicant repeated some of the complaints contained in his amended application. He emphasised the mistaken reference by the Tribunal to “China” in its letter of 19 December 2013 to the applicant. Further, that the Tribunal found his documents to be fraudulent in circumstances where he insists they were genuine. The applicant also took issue with the Tribunal’s finding that he was not a member of the BNP in Bangladesh.

2. The applicant’s complaint concerning the Tribunal’s reference to “China” is also set out in ground two of the amended application.

3. The Tribunal’s letter of 19 December 2013 invited the applicant’s comments, or response to, particulars of information that he gave, orally, to the delegate at the interview with him. The letter was, in context, sent pursuant to the Tribunal’s obligation in s.424A(1) of the Act. I note that what the applicant told the delegate at the interview is not caught by any of the exceptions to s.424A(1), as set out at s.424A(3) of the Act.

4. The letter was signed by a Tribunal officer and not the Tribunal member (at CB 239). However, I take the view that the Tribunal member, who was constituted as the Tribunal for the purposes of conducting the review, must take responsibility for the letter and its contents.

5. It is the case that, in the letter the Tribunal did make reference to “China” (at CB 237.9):

   “If the Tribunal relies on this information in making its decision it would find that you do not hold any fears about returning to China as you have claimed but have fabricated those claims in order to remain in Australia. The Tribunal would find that you are not owed protection obligations.”

   [Emphasis added.]

6. It is clear that the reference to “China” was in error. The Minister says this was a “typographical” error when regard is had to the totality of the letter.

7. Some care must be taken with the description “typographical”. The term refers to the process of printing (see for example Shorter Oxford Dictionary, Sixth Edition, Oxford University Press). However, the reference to China in the current case (“the error”) was not a misplaced comma, or apostrophe, or error in spelling such as can be said to have arisen in the process of printing. Rather, the error was a mistaken reference by the author of the letter to the wrong country. The error, therefore, derives from the author, not the process of printing.

8. There is no evidence before the Court to explain this error. Speculation, therefore, as to whether it was a result of carelessness, or the product of “cutting and pasting”, or otherwise, is of no assistance.

9. This immediately directs attention to the contents of the letter as a whole, and the role, if any, played by this error in the Tribunal’s consideration of the applicant’s claims, and, generally, its conduct of the review. That is, was this error of significance in the circumstances, such that the Tribunal’s exercise of its jurisdiction miscarried in some way.

10. The contents of the remainder of the entire letter of 19 December 2013 plainly addressed the applicant’s circumstances as presented. There are at least three references to “Bangladesh” in the remainder of the letter. In all, the reference to “China” was plainly a mistake. However, it is not an error that misled the applicant or one that indicates that the Tribunal did not understand or address the applicant’s circumstances.

11. In any event, the applicant drew this mistaken reference to the Tribunal’s attention in a letter to the applicant dated 23 January 2014 (CB 247.9). The Tribunal wrote to the applicant again on 28 January 2014 and put the relevant information to him again. On this occasion the Tribunal’s letter made the correct reference to Bangladesh (CB 250).

12. The Tribunal gave the applicant further time to respond. Importantly, there is nothing in the Tribunal’s decision record to support the claim that the mistaken reference in the Tribunal’s first letter was anything more than a simple error. In the circumstances, no practical injustice was caused by this error. I cannot see that the Tribunal breached any procedural fairness obligations towards the applicant. Ultimately, there is nothing in the Tribunal’s decision record to suggest that it did not carefully consider the applicant’s claims and that that consideration was conducted with  reference to the claims as made by the applicant. In all, ground two is not made out.

13. There are a number of elements asserted in ground one. First, the ground asserts that the Tribunal failed to mention clearly why his application was rejected. This claim is factually without basis.

14. Any plain reading of the Tribunal’s decision record reveals that the reason, or the basis for its decision, was the Tribunal’s comprehensive rejection of the applicant’s credibility (“…not a credible witness…”). This conclusion was informed by eight separate groups of findings in relation to the claims made and evidence given. The Tribunal’s concluding finding, and the findings that informed it, were all reasonably open to the Tribunal to make on what was before it. The Tribunal extensively explained its reasoning (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)). This claim is not made out.

15. Second, the applicant complains that he was not given an opportunity to address the Tribunal’s concerns about his claims, which then led to its finding that he was not a credible witness.

16. It is not clear from the applicant’s ground as to whether the applicant makes this complaint with reference to the Tribunal hearing, or otherwise, or both.

17. If it is with reference to the hearing then, despite opportunity to do so, the applicant has not provided any evidence to the Court to support his claim. For example, there is no transcript of the Tribunal hearing before the Court.

18. The only relevant evidence is the Tribunal’s reference in its decision record to what occurred at the hearing. These references reveal that the Tribunal’s concerns about various aspects of the applicant’s claims and evidence were discussed at the hearing. The issues dispositive of the review were raised with the applicant at the hearing. The Tribunal discharged its obligation pursuant to s.425 of the Act (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”)).

19. On the key matter of the applicant’s credibility, the applicant could have been in no doubt, following the delegate’s decision, that the credibility of the entire factual basis of his claims was at issue (see CB 201.7). Further, the Tribunal’s various references to what occurred at the hearing “sufficiently indicate” (with reference to SZBEL at [47]) that the Tribunal’s concerns were raised with the applicant.

20. If the applicant’s complaint, that he was not given the opportunity to address the Tribunal’s concerns about his claims, was a reference to an opportunity other than the hearing, then this also cannot be sustained.

21. As referred to above, the Tribunal wrote to the applicant pursuant to s.424A of the Act and gave him the opportunity to comment on, or respond to, information which it considered would be a part of the reason for affirming the delegate’s decision. As stated above, it wrote again and “corrected” that part of the first letter which was in error.

1. In all, the applicant was given the opportunity to address the Tribunal’s concerns. No failure of procedural fairness is evident.

2. Third, ground one also takes issue with factual findings made by the Tribunal concerning his credibility, its view of the changes to his evidence, and its rejection of his claims to fear harm. The Tribunal’s findings were all reasonably open to it (Durairajasingham). No error is revealed here. In all, ground one is not made out.

3. Ground three complains that the Tribunal did not give the applicant the opportunity to address “adverse findings and reasons”. To the extent that this seeks to repeat the complaints in ground one, what is set out above stands in answer.

4. It may be that the applicant’s ground seeks to assert that the Tribunal should have given him the opportunity to comment on a draft of its decision record. If that is the case, then there is no statutory obligation on the Tribunal to do so. Further, at common law, the applicant was given the opportunity to present his case and was made aware of the substance of the case against him which he was required to answer (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J, as he then was, at 582). No failure of procedural fairness is apparent in this regard. The Tribunal is not obliged to give the applicant a copy of its draft reasons for comment.

5. The particular to ground three, when read with the ground, appears to allege that the Tribunal relied on “incorrect information”, and particularised non-existent information or “very old country information”.

6. The ground asserts that in finding that the applicant did not participate in the Long March, the Tribunal referred to country information to find that the applicant’s claims were inconsistent with this information. The ground refers to one source cited by the Tribunal, “The Daily Stay” (footnote 2 at CB 261, with reference to [22] of the Tribunal’s decision record). The particulars assert that there is “no paper” in Bangladesh with this name.

7. The difficulty for the applicant is that there is no evidence from him before the Court to support this claim. For example, there is no evidence as to what investigation he conducted or what sources he interrogated to make this assertion in his particulars.

8. In any event, the Tribunal’s citation also provides a website address for the newspaper article it relied on. That address is There is nothing in the particulars to assert that there is no such website or any newspaper with the name “The Daily Star”. Plainly, in context, what appears at footnote 2 is, in this instance, a typographical error. However, the applicant could have been in no doubt that the information the Tribunal referred to came from the “Daily Star” as set out in the internet address.

9. The reference in the particular to “Article 6(b)(9) of Bangladesh National Party Constitution” remained unexplained before the Court. In the circumstances it, therefore, cannot assist the applicant’s ground.

10. The particular also asserts that the Tribunal used and relied on “old country information”. The subsequent reference to various dates and the reference to “page 10” of the Tribunal’s decision, directs attention to footnote 6, with reference to [36] of the Tribunal’s decision (see at CB 265). Here, the Tribunal set out various sources of information concerning the availability of fraudulent or forged documents in Bangladesh.

11. As the Minister submitted, the choice and weight to be given to country information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, see also Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J (as he then was) and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46 at [45] per Spender, Moore and Foster JJ). Further, while one of the sources could be described as “old” (a DFAT cable from 1988), the other sources were more recent. When considered in context, the “sequence” of sources served to underline the length of time of the availability of such documents in Bangladesh, which served to provide a historical dimension to the Tribunal’s finding as to the availability of such documents.

12. Even further, the Tribunal did not simply rely on that finding to subsequently find that letters of support provided by the applicant were not genuine (see [37] at CB 265 to [39] at CB 266). The Tribunal rejected the genuineness of these letters because of what was stated in the letters, inconsistency between the letters and the applicant’s own evidence, and the inadequacy of his explanation for this.

13. Before the Court the applicant stated that his documents were genuine. This is no more than a disagreement with the findings made by the Tribunal which were reasonably open to it on what was before it. Ground three is not made out.

Conclusion

1. The grounds of the application, as amended and explained before the Court, are not made out. It is appropriate to dismiss the application. I will make an order accordingly.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 12 November 2015