SZUFG v Minister for Immigration and Border Protection
[2015] FCA 448
•11 May 2015
FEDERAL COURT OF AUSTRALIA
SZUFG v Minister for Immigration and Border Protection [2015] FCA 448
Citation: SZUFG v Minister for Immigration and Border Protection [2015] FCA 448 Appeal from: SZUFG & Ors v Minister for Immigration and Citizenship & Anor [2015] FCCA 218 Parties: SZUFG, SZUFH and SZUFI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 148 of 2015 Judge: EDMONDS J Date of judgment: 11 May 2015 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court – where Federal Circuit Court affirmed decision of Refugee Review Tribunal which in turn affirmed decision of Minister’s delegate not to grant the appellants protection visas – where appellants did not identify any error with decision of Federal Circuit Court – where notice of appeal failed to identify appellable error in findings of court below – where no error apparent on the face of the record Legislation: Migration Act 1958 (Cth) ss 36, 65, 422B, 424A, 429A Cases cited: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited
Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 cited
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 citedDate of hearing: 11 May 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Solicitor for the First Appellant: The First Appellant appeared in person Solicitor for the Respondents: Ms F Taah of Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 148 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZUFG
First AppellantSZUFH
Second AppellantSZUFI
Third AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
11 MAY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The First and Second Appellants pay the First Respondent’s costs fixed in the sum of $1,200.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 148 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZUFG
First AppellantSZUFH
Second AppellantSZUFI
Third AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
11 MAY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from a judgment of the Federal Circuit Court (“FCC”) delivered on 4 February 2015: SZUFG & Ors v Minister for Immigration and Citizenship & Anor [2015] FCCA 218. The FCC dismissed an application for review of a decision of the Refugee Review Tribunal (“Tribunal”) which affirmed a decision of a delegate of the first respondent (“Minister”) not to grant the appellants Protection (Class XA) visas under s 65 of the Migration Act 1958 (Cth) (“Act”).
BACKGROUND AND PROTECTION CLAIMS
The appellants are citizens of Bangladesh. The first and second appellants are the parents of the third appellant, who is a minor. They arrived in Australia on visitor visas on 20 July 2012. On 16 August 2012, the first appellant lodged an application for Protection visas, with the second and third appellants included in the application as members of his family unit. On 30 November 2012, the application for the Protection visas was refused by a delegate of the Minister. The appellants applied to the Tribunal for review and on 26 March 2014, the Tribunal affirmed the delegate’s decision.
The second and third appellants relied on the first appellant’s protection claims. A summary of those claims is at [10] and [11] of the FCC reasons for judgment (“R”). The first appellant claimed to fear harm in Bangladesh from members of the Awami League because he was one of the vice presidents of the Bangladesh National Party (“BNP”) and was targeted due to his support of that party.
TRIBUNAL DECISION
The Tribunal was not satisfied that the appellants could be granted Protection visas either on Refugee Convention grounds or under the alternative criterion in s 36(2)(aa) of the Act. Essentially, the Tribunal considered that the first appellant was not a credible witness as it found his evidence regarding his claims to be implausible, changing in nature, vague and inconsistent. The Tribunal rejected the first appellant’s central claim that he was a BNP activist and that he had been targeted or harmed by the Awami League as a result.
A summary of the reasons for the Tribunal’s rejection of the first appellant’s claims is at R [12]–[19].
APPLICATION TO AND JUDGMENT OF THE FCC
On 15 April 2014, the appellants lodged an application for judicial review of the Tribunal’s decision to the FCC which contained four grounds of review, none of which were supported by particulars. The application was supported by an affidavit of the first appellant.
Ground 1 alleged that the Tribunal failed to take into consideration the first appellant’s oral and documentary evidence. The FCC found that this allegation was not supported by the Tribunal’s decision record which indicated that the Tribunal discussed the first appellant’s claims and documentary evidence with him at the hearing. His Honour noted that the Tribunal went on to make detailed findings rejecting those claims on the basis of the first appellant’s lack of credibility, with his Honour citing relevant authority establishing that credibility findings are a matter for the Tribunal: R [41]–[43]. The FCC also found that this allegation could not be sustained with respect to the first appellant’s documentary evidence, as the Tribunal’s decision record indicated that it had considered the documents but gave no weight to them.
The FCC considered that ground 2 appeared to allege that the appellants were denied procedural fairness because they were not given the opportunity to comment on adverse information. The FCC found that this ground could not succeed because it was clear from the Tribunal’s decision record that the Tribunal did not rely on any adverse information which engaged obligations under s 424A of the Act: R [47].
The FCC also found that neither of the allegations made in ground 3 could be sustained. On the first allegation, that the Tribunal was biased in respect of its reliance on country information, the FCC noted that the choice of and weight given to independent country information was a matter for the Tribunal, referring to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]–[13]: R [50]. His Honour found no error in the Tribunal’s reliance on country information. The FCC also found that the Tribunal had considered all of the first appellant’s claims hence the second allegation that the Tribunal failed to consider his claims “individually” could not succeed: R [51].
Ground 4 also made 2 allegations. On the first allegation, that the appellants were denied natural justice, his Honour firstly referred to ss 422B to 429A of the Act, that is Div 4 of Pt 7 of the Act, being an exhaustive statement of the requirements of the natural justice hearing rule, and noted that on the evidence before it, the appellants had been validly invited to a hearing, had attended that hearing, and that at the hearing, the dispositive issues relating to their application for the Protection visas were discussed. The FCC found no denial of procedural fairness or natural justice: R [55]. Similarly, the FCC found that the appellants’ second allegation of actual or apprehended bias by the Tribunal could not succeed, noting the requirement of such a claim to be distinctly made and proven, referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [127]. The FCC noted that the allegation of bias had not been particularised, and found no evidence before the Court, such as a transcript of the Tribunal hearing, that was capable of substantiating it: R [56]–[58].
The FCC then went on to consider the first appellant’s oral submissions at the hearing. The only submission which raised matters that had not already been addressed was an allegation that the Tribunal failed to discharge its duty to make inquiries as to the veracity of the documents provided by him to the Tribunal. The FCC referred to the High Court’s decision in Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 in which their Honours discussed when a Tribunal’s failure to make enquiries could give rise to jurisdictional error: R [60]. His Honour was not satisfied that there was anything in the appellants’ documentary evidence that engaged a duty to enquire, nor was there an obvious inquiry about a critical fact, the existence of which was easily ascertained, that the Tribunal was under a duty to make, especially given that the Tribunal’s primary reason for rejecting the appellants’ claims was the first appellant’s lack of credibility: R [61].
The FCC concluded that none of the appellants’ grounds or the allegations made in the first appellant’s oral submissions could be sustained, and was satisfied that no error on the part of the Tribunal was apparent on a fair reading of the Tribunal’s decision record and on the evidence before the Court: R [64].
APPEAL TO THIS COURT
On 24 February 2015, the appellants filed a notice of appeal in this Court containing five grounds as follows (verbatim):
(1)The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration of my oral evidence regarding the persecutions, humiliations and sufferings I experienced in Bangladesh for my political belief on Bangladesh Nationalist Party (BNP) activist. It is an error of law
(2)The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to verify my claims and documents and evidences that I submitted during the application process and failed to enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse materials. If I would be given the opportunity it could have led to a different decision by the Tribunal. It is an error of law
(3)The Tribunal denied the natural justice in determining my review application that the Tribunal biased, or in the alternative, there was an apprehension of bias in the making of purported decision such that it vitiated the said purported decision. It is an error of law
(4)The Tribunal in its purported decision has mentioned without any valid reason that I will have no problem if I return back to my country of residence, Bangladesh. The Tribunal totally ignored my the persecutions as a BNP activists despite of providing adequate documents in support of my claims. In fact the tribunal should have given me the opportunity to me to comment on. It is an error of law
(5)The Tribunal failed to consider my fear of persecution at the time of oral evidence and ignored with bias. It is an error of jurisdiction.
The notice of appeal is supported by an affidavit of the first appellant. Paragraphs 1 to 3 of that affidavit are mere statements of fact. The remainder of the affidavit repeats the first appellant’s claims for protection.
On 24 February 2015, a Registrar of this Court made directions requiring the appellants to file and serve a written outline of submissions. No written submissions were filed by or on behalf of the appellants.
ANALYSIS
No error is asserted in the judgment of the FCC in the notice of appeal. Rather, the appellants’ grounds repeat aspects of the first appellant’s claims for protection and raise errors that they assert were committed by the Tribunal. However, those errors were considered in the judgment of the FCC, as summarised at [7]–[11] above.
Relevantly, the FCC considered the appellants’ grounds in their application for review and the oral submission made by the first appellant at the hearing. However, His Honour found that none of the appellants’ grounds or submissions revealed any jurisdictional error in the decision of the Tribunal. Further, the FCC found, on a fair reading of the Tribunal’s reasons and on the evidence before it, that no error on the part of the Tribunal was apparent.
The first respondent submits that the FCC was correct to find no jurisdictional error in the reasons of the Tribunal, for the reasons it gave. Nothing in the notice of appeal identifies any matter capable of characterisation as appellable error. I agree with those submissions.
CONCLUSION AND ORDERS
The notice of appeal identifies no legal error in the reasons of the FCC, nor is any such error apparent. There is also no apparent jurisdictional error in the decision of the Tribunal for the reasons given by the FCC.
The appeal must be dismissed with an order that the first and second appellants pay the first respondent’s costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 12 May 2015
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