Szuch v Minister for Immigration and Border Protection
[2016] FCA 185
•2 March 2016
FEDERAL COURT OF AUSTRALIA
SZUCH v Minister for Immigration and Border Protection [2016] FCA 185
Appeal from: SZUCH v Minister for Immigration & Anor [2015] FCCA 3030 File number: NSD 1521 of 2015 Judge: PAGONE J Date of judgment: 2 March 2016 Catchwords: MIGRATION – appeal from Federal Circuit Court – Protection (Class XA) visa – no appealable error Legislation: Migration Act 1958 (Cth) Date of hearing: 2 March 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 9 Counsel for the Appellant: The appellant appeared in person assisted by an interpreter Counsel for the First Respondent: Ms F Taah of Australian Government Solicitor Counsel for the Second Respondent: The second respondent submits, save as to costs ORDERS
NSD 1521 of 2015 BETWEEN: SZUCH
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
2 MARCH 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)PAGONE J:
This is an appeal from a decision of Judge Nicholls of the Federal Circuit Court made on 12 November 2015 dismissing an application for review of the Refugee Review Tribunal affirming an earlier decision not to grant the appellant a Protection (Class XA) Visa under s 65 of the Migration Act 1958 (Cth) (“the Act”). The appellant appeared in person and was unrepresented at the hearing of the appeal but was assisted by an interpreter in the Bengali language.
The appellant is a national of Bangladesh who lodged an application for a protection visa on 18 October 2012. He claimed to have a well-founded fear of persecution in Bangladesh because of his political opinion, of his having been a member and General Secretary of the Bangladeshi National Party (“the BNP”) and because of his being a member of particular social groups. He claimed to have participated in various political activities as a result of which he was intimidated, threatened, attacked and robbed by members of the Awami League and that he feared being physically harmed, killed or extorted by the Awami League if he is returned to Bangladesh.
His application for the protection visa was refused by a delegate of the Minister on 8 February 2013. His application to the Tribunal for a review of the delegate’s decision was made on 15 March 2013 and was heard on 25 November 2013. He was subsequently invited by letter on two occasions to comment on or to respond to information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review as required by s 424A of the Act. In one of those letters the appellant’s country was incorrectly referred to as China. The appellant responded to the letters and on 24 February 2014 the Tribunal affirmed the delegate’s decision not to grant him a protection visa. He applied for judicial review of the Tribunal’s decision by the Federal Circuit Court on 25 March 2014 under s 476 of the Act. His application was amended on 18 June 2014 and dismissed on 12 November 2015.
His grounds of appeal to this Court are as follows:
Ground One:
1. This Ground should be accepted for the reasons below:
1.1My claim of 'Fear of Persecution' is based on the experience I have encountered in the past. I solemnly believe my return to Bangladesh will endanger my life.
1.2.I have been successful to established with Second Respondent that I am a BNP activist. Tribunal has failed to consider my situation and the current situation in Bangladesh. It is essential and part of Department's policy to take consideration into circumstances that will affect me upon returning to Bangladesh.
1.3.I belong to Bangladesh Nationalist Party and my association and affiliation with this 'Political party' is substantiated by my acts and active participation. I have knowledge, activity and political believe in BNP. This political party has acknowledged my involvement by writing letters in support of my claim.
1.4.My reasons for joining and participating in BNP are stipulated in my Statements that I have provided before the delegate of the Minister for Immigration and Border Protection and Member of the Refugee Review Tribunal. In both instances the
1.5.Accordingly my active participation with BNP constitutes 'reasonable fear of persecution' and falls under the ambit of the Convention or the Act on the evidence and information before the Tribunal.
Ground Two:
The Tribunal has erred in making assertion under Section 36(2)(aa) of the Migration Act. The Refugee Review Tribunal has failed to provide reasons for its decision pursuant to section 36(2)(aa) of the Migration Act.
In dealing with my claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the RRT explicitly failed to provide separate reasons to its consideration under section 36(2)(a) of the Act.
His appeal to this Court was accompanied by an affidavit which stated only that he was the appellant, was authorised to make the affidavit and that the “information provided to this Honourable Court are true based on my knowledge”. No other information was, however, provided to the Court except the reasons for the orders of the Federal Circuit Court which was an annexure to his affidavit.
None of the grounds stated in the appeal establishes reviewable error. Ground 1 sets out a number of reasons by which the appellant maintains that his active participation with BNP constitutes “reasonable fear of persecution” and falls within the ambit of the Convention or the Act on the evidence and information before the Tribunal. The ground, however, identifies no error made by the Federal Circuit Court, or of any error before it by the Tribunal or by the delegate. The ground is a repetition of the appellant’s factual claim which the Tribunal rejected on the evidence and information before the Tribunal. The Tribunal had specifically rejected the fundamental claim by the appellant that he was a member or a supporter of BNP. The Tribunal said in this regard at paragraph [40]:
Having considered all of the applicant's evidence and the Tribunal's credibility concerns discussed above, the Tribunal finds that the applicant was not a BNP member or supporter in Bangladesh, that he was not attacked, threatened, robbed or subjected to false charges or accusations by the Awami League, that he was not forced to sell his business, he as not subject to extortion and that he did not flee Bangladesh because of any fear of harm from the Awami League. The Tribunal finds that the applicant's land has not been occupied by Awami League members. As the Tribunal has found that the applicant was not involved with the BNP in Bangladesh before coming to Australia and is not a credible witness, the Tribunal finds that the applicant would not participate in BNP activities if he was to return to Bangladesh. Therefore the Tribunal finds that there is no real chance of the applicant being harmed for reasons of his political activities or opinions in Bangladesh.
There is no basis shown to consider those findings to be erroneous or ones which the Tribunal was not able or permitted to make on the evidence and material before it.
The notice of appeal claims at paragraph 1.2 that the Tribunal had failed to consider his situation and the current situation in Bangladesh, but that submission has no foundation when regard is had to the reasons given by the Tribunal. The reasons of the Tribunal, contrary to the appellant’s submissions, do consider and set out the appellant’s circumstances and the current situation in Bangladesh in some detail. At paragraphs [44]-[47] the Tribunal specifically said:
44.The Tribunal accepts that political violence is a frequent occurrence in Bangladesh. The Awami League and the BNP have a long history of conflict. The alternating periods of rule have corresponded with massive demonstrations and strikes carried out by the opposition party. The current BNP-Ied opposition has intermittently boycotted the current parliament since its formation, and continues to organise hartals (mass protests) to oppose the Awami League government's initiatives. A number of reports refer to BNP supporters receiving adverse treatment from supporters of the Awami League, which took government following its victory at the 2008 parliamentary election. Other reports refer to clashes between BNP and Awami League supporters. The Bangladeshi police force is highly politicised and is used by the government of the day as a tool against political opponents. Instances of BNP supporters receiving adverse treatment from security forces are reported, although BNP supporters have also attacked security forces, or received attention from them due to violence committed during demonstrations and. hartals. The incumbent Awami League government has withdrawn "politically motivated" cases against their own supporters while leaving those against BNP politicians in place. The Tribunal also accepts that the violence has increased as a result of the election in January 2014.
45.However, as the Tribunal does not accept that the applicant was robbed, attacked, threatened or had false charges laid against him and the Tribunal has found that the applicant is not a BNP member or 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.
46.To the extent that the applicant was claiming that he would be harmed as a result of other generalised violence, this is a danger faced by everyone in Bangladesh and there does not appear to be any element of systematic or discriminatory conduct as required by s.91R(1)(c) of the Act. When it was discussed with the applicant at the hearing that generalised violence will usually not fall within the refugee criteria he stated that he had no comment on this.
47For the reasons given above, having considered the applicant's claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
(footnotes omitted)
The Tribunal rejected the appellant’s claims because it were not satisfied by what he, or the letter of support, claimed. It specifically identified a number of issues about which it doubted his credibility as being inconsistent, unpersuasive or untruthful. It was not satisfied that the letters of support were genuine in light of the country information regarding the prevalence of fraudulently obtained documents in Bangladesh and of incorrect information regarding the appellant within one of the letters and a formatting abnormality with another.
The second ground in the appellant’s notice of appeal claims that the Tribunal failed to provide separate reasons when considering his claims under the complementary protection provisions in s 36(2)(aa) of the Act. However, that claim is wrong and is inconsistent with what appears in the Tribunal’s published reasons. The Tribunal said at paragraphs [48]-[51]:
Complementary protection criteria
48.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reasons discussed above the Tribunal has found that the applicant is not a credible witness and there is no real chance that he would be harmed in Bangladesh for the reasons he has claimed. As the Tribunal found that he would not participate in the BNP if he was to return to Bangladesh, has not been harmed, robbed or threatened in the past, his land has not been occupied by the Awami League and he has not had false charges laid against him, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence, of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
49.The Tribunal has considered the applicant's political activities in Australia. Although it accepts that he has been a member in the BNP Australia it considers that he was motivated by the desire to strengthen his protection visa application. The Tribunal does not consider that his activities in Australia reflect any commitment to continue any such activism once he returns to Bangladesh or that there is any evidence to suggest that he would be harmed because of his activities in Australia. Therefore the Tribunal is not satisfied that there are substantial grounds for, believing that there is a real risk that he will suffer significant harm as a result of his political opinions or activities if he returns to Bangladesh.
50.The applicant has claimed to fear returning to Bangladesh as a result of generalised violence there. However, under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. As put to the applicant at the hearing, generalised violence will not usually satisfy the complementary protection criteria. He had no comment on this; There is nothing in evidence before the Tribunal to suggest that the applicant 'would personally face a risk as a result of generalised violence in Bangladesh other than as a result of his claimed political activities, a claim which the Tribunal has already dealt with and rejected for the reasons set out above. Therefore the Tribunal finds that there is no real risk that the applicant will suffer significant harm as a result of the generalised violence in Bangladesh.
51.Having considered the applicant's claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
These paragraphs show that the Tribunal did, contrary to the ground in the notice of appeal, provide separate reasons when considering his claim for complementary protection under s 36(2)(aa). The Tribunal also referred to the relevant law with respect to complementary protection at paragraphs [12] to [14] of attachment 1 to the Tribunal’s decision.
At the hearing of the appeal, the appellant raised a ground that was not in the notice of appeal but which had been before the Federal Circuit Court. That was the claim that there had been an erroneous reference to China in one of the letters the Tribunal had sent to him inviting him to comment. The Federal Circuit Court dealt with that matter, particularly at paragraphs [24] to [31], by considering the material which had been before the Tribunal on that point and concluded at paragraph [29] that it was plainly a typographical error that had not misled the applicant and was not an error which indicated that the Tribunal did not understand, or address, the applicant’s circumstances. The Federal Circuit Court said at [24] to [31] of its reasons:
24.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. "
25.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.
26.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.
27.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.
28.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.
29.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.
30.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).
31.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.
The material before this Court supports the conclusion of the Federal Circuit Court and there is nothing shown upon which to assume that it was erroneous.
Accordingly, the appeal will be dismissed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 4 March 2016
0