SZUFP v Minister for Immigration

[2014] FCCA 2667

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUFP v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2667

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal refusing to grant applicant a Protection (Class XA) visa – application set down for show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) – no arguable case raised for the relief claimed – application dismissed pursuant to r.44.12(1)(a).

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A

Federal Circuit Court Rules 2001 (Cth), rr.44.11(b), 44.12(1)(a)

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZLSP & Ors (2010) 187 FCR 362
Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Randhawa v MinisterforImmigration,Local Government & Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZIPU v Minister for Immigration and Citizenship [2007] FCA 294
SZSTT v Minister for Immigration and Border Protection [2014] FCA 270
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant: SZUFP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1074 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 18 July 2014

Delivered at: Sydney

Delivered on: 25 November 2014

REPRESENTATION

The Applicant: The Applicant appeared in person with a Bengali interpreter.

Solicitor for the First Respondent: Ms N Senanayake of DLA Piper

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZUFP.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1074 of 2014

SZUFP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 17 April 2014 in the Federal Circuit Court under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”) seeking relief in the form of constitutional writs against a decision of the Refugee Review Tribunal (the “Tribunal”) dated 17 March 2014 in case no. 1311608. The Tribunal affirmed a decision by a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), not to grant the applicant a Protection (Class XA) visa.

2. The solicitors for the Minister filed a folder which was indexed, labelled and paginated on 14 May 2014. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.   

3. By orders made on 24 June 2014 the matter was set down for a show-cause hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). The applicant was granted leave to file and serve any additional affidavits, written submissions and list of authorities upon which he wished to rely by 9 July 2014. The applicant filed written submissions on 9 July 2014.

Background  

1. The applicant is a male citizen of Bangladesh born on 13 March 1977 (CB 55).   He arrived in Australia on 19 November 2012 (CB 58).

2. The applicant applied for a Protection (Class XA) visa on 17 December 2012 (CB 1-60).   His claims were set out in a statement accompanying the application and are summarised below (CB 59-60).

3. The applicant’s Protection visa application was refused by a delegate of the Minister on 6 August 2013 (CB 78-97).  The applicant applied to the Tribunal for review of the delegate's decision on 14 August 2013 (CB 98-128).   The applicant was invited to, and attended, a hearing before the Tribunal held on 28 January 2014. The Tribunal made its decision on 17 March 2014, affirming the delegate’s decision not to grant the applicant a Protection (Class XA) visa.

The applicant's claims

1. The applicant claimed to fear harm in Bangladesh due to his involvement with the Bangladesh Nationalist Party (“BNP”).  The applicant claimed that he was involved in welfare activities for people in his local area.  The applicant also claimed that he was a business owner, but had lost his business due to harm by the Awami League. 

2. The applicant claimed that he was a member of the Brahmanbaria Upazila Executive Committee and in 2011 worked as an election coordinator in the local by-election.  The applicant also claimed that in 2011 he contested the local union council election.  He claimed that the Awami League used cadres, police and government power to win this election. 

3. The applicant stated that he complained about this to police despite threats from the Awami League, but the police refused to help.  He claimed that the police ultimately informed the Awami League of his complaint and that the Awami League then came to his house and threatened to cease financially supporting his NGOs until he stopped his political activities and joined the Awami League. 

4. The applicant claimed that he refused and, as a result, the Awami League again threatened him by asserting that they would either have him killed or detained.  The applicant claimed that he informed police of this incident, but the police refused to take any action.  The applicant claimed that he had been bashed by the Awami League. 

5. In support of his claims, the applicant submitted photographs which he claimed depicted himself with a local member of the BNP (CB 73-75 and CB 91),  a document from Alhaj Mosharaf Hossain Munshi of the Machihata Union Council Office (CB 141-142), a document from the Rural Assistance for the Poor Employment (CB 143-144), Medical documents regarding the applicant's son (CB 145-151 and CB 153), a letter from the Bullet Party threatening the applicant (CB 160-161), a police report made by the applicant (CB 162-163), a receipt from an election of the Machihata Union (CB 170),  a letter from the BNP (CB 172), and BNP meeting notes (CB 173).

The Tribunal’s Decision

1. The Tribunal found that the applicant was not a credible witness (CB 186 at [11] and CB 193 at [37]), for the reasons set out at [12]-[36] of the Decision Record (CB 186-193).  The Tribunal was satisfied, on the basis of the medical documents provided, that the applicant's son was in hospital at the time of the Departmental interview, but was not satisfied that this explained the inconsistencies and concerns of the Tribunal (CB 193 at [39]).

2. The Tribunal concluded that the applicant was not a member or supporter of the BNP, that he was not threatened, attacked or subjected to extortion by the Awami league, that he was not forced to close his business and that he did not flee Bangladesh due to fear of harm (CB 194 at [40]).  The Tribunal found that the applicant would not participate in BNP activities if he returned to Bangladesh and therefore concluded that there was no real chance that the applicant would be harmed for reasons of his political activities or opinions in Bangladesh (CB 194 at [40]).

3. The Tribunal accepted on the basis of the document from the Rural Assistance for Poor Employment that the applicant may have been involved in social welfare activities in Bangladesh, but found that there was no evidence to suggest that the applicant would be harmed as a result (CB 194 at [41]).  The Tribunal accepted that the applicant may have owned a business, but did not accept that it was closed due to any political persecution of the applicant (CB 188 at [18]). 

4. The Tribunal considered the remaining documents provided by the applicant as follows:  

   a)It placed limited weight on the photographs submitted by the applicant as there was no evidence that they depicted politically related meetings (CB 186 at [12]).  The Tribunal had regard to the letter from Alhaj Mosharaf Hossain Munshi of the Machihata Union Council Office and found that it was not credible that a member of the Awami League would take the side of the applicant as claimed, and was not satisfied that the letter was a genuine document (CB 191 at [31] – CB 192 at [34]);

   b)It pointed to inconsistencies between the applicant's evidence and the information given in the letter from the BNP (CB 187 at [14]), and also pointed to inconsistencies between the applicant's evidence and the information in the election receipt (CB 193 at [36]).   The Tribunal was not satisfied that the receipt was genuine;

   c)It found that the applicant's evidence about the letter from the Bullet Party threatening the applicant and the police report the applicant claimed to have made about this to be unpersuasive.  The Tribunal was not satisfied that they were genuine documents (CB 188 at [19] – CB 190 at [22]); and

   d)It placed little weight on the meeting notes, in light of its adverse view of the applicant's credibility and information about the availability of fraudulent documents (CB 193 at [38]).

5. For the purposes of complementary protection the Tribunal had regard to the applicant's lack of credibility, the findings that he would not participate in the BNP if he returned to Bangladesh and that he had not been harmed in the past (see [43]).  The Tribunal concluded that there was no real risk that the applicant would suffer significant harm due to his political activities or due to his social work (at [43] - [44]).

Current Proceedings

1. The applicant’s application seeking review of the Tribunal’s decision was filed in the Court on 17 April 2014.  The grounds of the application are as follows:

   1. The applicant claims that the Refugee Review Tribunal (the Tribunal) made a mistake that the Tribunal did not mention clearly in its findings and reason why the Tribunal will not accept the applicant was a BNP politician.   The Tribunal also failed to give an opportunity to the applicant to explain the issues which are the reason or part of the reason to reject the genuine protection application of the applicant.  The applicant also was not given opportunity to explain the adverse information which is a mistake done by the Tribunal.  The Tribunal did not try to determine whether the applicant has a fear for persecution for his political opinion.  The Tribunal was testing the applicant’s knowledge of the constitution of the BNP which is always questionable of the intention of the Tribunal.

   Particulars

   (i)  The applicant has provided a number of photographs of himself with groups of men but there is no evidence that these are politically related meeting and the Tribunal has placed limited weight on them. 

   (ii) He stated that he was familiar with the BNP Constitution and that on his committee there were four vice presidents, one Joint Secretary and seven Assistant Organising Secretaries.  This is not consistent with the BNP Constitution.

   (iii) The change in his evidence about when the threats were received raises concerns for the Tribunal about the truthfulness of the claim.

   (iv) The applicant claimed to have been General Secretary of the BNP at union level since 2010 and to have been involved with the BNP since 1994.  He claimed that he had read and was familiar with the BNP Constitution, as the Tribunal expect from a person involved such a high level.

   2. The Tribunal made a procedural mistake that the Tribunal failed to comply with the Migration Act. 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 applicant did not understand the information and its impact on the review application. The Tribunal did not give a fair opportunity to the applicant to satisfy the Tribunal.

   Particulars

   This is not consistent with the BNP Constitution which states in Article 5(a)(4) that the subscription fee for membership is 5 taka and the annual fee is 5 taka. 

   The applicant’s lack of involvement in political activities here in Australia which he was aware of so raises concern in the Tribunal’s mind about the genuineness of the applicant’s claimed political beliefs.

   He has provided a letter from the BNP dated 20 August which refer to him being appointed as Organising Secretary or Assistant Organising Secretary.

   The applicant’s lack of involvement in political activities here in Australia which he was aware of so raises concern in the Tribunal’s mind about the genuineness of the applicant’s claimed political beliefs.

   That he only told his brother about his difficulties before or after coming to Australia.

   After he reported being attacked by Awami League members to the police then told the members that the applicant had reported them and then the police told the applicant that they had told the Awami League.

   The Tribunal is willing to accept that this may have been the case.  However there is no evidence before the Tribunal to suggest that the applicant would be harmed because of this or for any other Convention related reason.

   3. The Tribunal failed to comply with the Migration Act. The Tribunal wrongfully rejected the applicant’s genuine claim. The Tribunal did not consider the applicant’s public profile. The Tribunal has no idea about politician’s public life and public profile. This knowledge and idea is very important when to review a genuine protection applicant based on genuine fear and risk for life and where threat is fully present for life. The Tribunal reviewed the applicant in a way which is not allowed by Migration Act and also not allowed by Refugee Convention. The Tribunal made a procedural mistake. The Tribunal did not follow Refugee Convention. The Tribunal made a procedural mistake. The Tribunal’s grounds for rejection were not evidenced by any references or documents. The Tribunal willingly rejected the claim. The Tribunal was not fair and just according to Migration Act. The Tribunal used excessive power to reject the applicant’s review application. The Tribunal did not act according substantial justice and the merits of the case. The Tribunal did not consider the circumstances of the applicant and his genuine claim for protection in Australia for his fear for his life. The Tribunal has the information about the relationship between the police and the ruling party but the Tribunal did not want to use that knowledge to assess a genuine claim for protection.

Applicant’s Submissions

1. On 9 July 2014, in accordance with the orders of 24 June 2014, the applicant filed written submissions.  The applicant argued that he is an active BNP politician and a supporter of women’s education and is involved with two NGOs in his local area.  He was a member of the Executive Committee of Upazila BNP.  The applicant claims that he was threatened by the ruling party and that the authorities will not protect him. 

2. At the hearing, the applicant indicated he had nothing to add to his written submissions.  Accordingly, it is convenient to reproduce the applicant’s submissions, noting that paragraph numbers have been added to enable the paragraphs to be separately identified for consideration.  The applicant stated:

   1.  The applicant is a citizen of Bangladesh, applied to the Department of Immigration and Border Protection for the visa on 17 December 2012.  He was interviewed by the delegate on 18 April 2013.  The delegate refused to grant the visa on 6 August 2013 and notified the applicant of the decisions the same day.

   2. The delegate refused the visa on the basis of that the applicant did not meet the criteria for the grant of a Protection visa under paragraph 36(2)(a) of the Migration Act and subclause 866.221(2) of Schedule 2 to the Migration Regulations.

   3.  The applicant does not agree with the decision of the delegate of the Department.  The delegate did not assess the claim properly.

   4. The applicant applied to the Tribunal for review of the delegate’s decisions and he appeared before the Tribunal on 28 January 2014 to give evidence and present arguments to the Tribunal. The applicant is an active BNP politician; he is a supporter of women’s education. For that purpose he was involved with two NGOs in his local area. He was a member of executive committee of Upazila BNP in his area. He got threat for his life from the ruling party member and the authority will not protect him. He does not accept the Tribunal decision. The Tribunal did not assess his application with full information. The Tribunal’s decision was not done according to the Migration Act.

   5. The Tribunal did not mention clearly why it did not believe him and his claim. The concerns raised by the Tribunal are not accepted by the applicant. The Tribunal can’t raise concerns in this way under the Migration Act. There is no proof that the Tribunal is right. The Tribunal did not make any investigation, it only collected information from the applicant but the Tribunal should do more than what it did to reject the genuine application for protection [from] a politician.

   6.  The photographs provided by the applicant of himself and a group of men to the Tribunal.  The people in the photographs are BNP politician.  They are involved with BNP politics.  There is no evidence before the Tribunal to support its claim, the concerns of the Tribunal about the photographs and relevance with the BNP politics of the applicant is wrong.  The Tribunal raised these issues to reject the applicant’s genuine claim for protection.  The Tribunal was not fair and just.  The applicant’s claim is right.

   7.  The Tribunal made a procedural mistake.  The applicant was elected organising secretary in February 2010.  The applicant provided a letter from the BNP dated 20 August which refers to him being an Executive Member of newly formed committee of BNP Upazilla Branch since February 2010.  But the reference given by the Tribunal is very old and they are in year of 2009.  The Tribunal collected old information to make decision on the review application, which is not accepted by the applicant and the Tribunal made a mistake to assess the genuine claim for protection.

   8.  The Tribunal made a mistake that the Tribunal can’t reject the claim on the basis that the applicant was not involved in the BNP politics in Sydney, Australia.  The Tribunal mentioned that the applicant’s lack of involvement in political activities here in Australia which he was aware of so raises concerns in the Tribunal’s mind about the genuineness of the applicant’s claimed political beliefs.  The Tribunal made a mistake in this regard.  The Tribunal was not fair and just with the applicant.  The applicant did not get justice from the Tribunal.  The Tribunal’s mind was not fair, it acted against the review applicant.

   9. The Tribunal did not act independently. The applicant submits his claim to the Department. The Department took interview but the applicant submits that he does not know under which law of the Migration Act that the Department can take interview of him. The information was used by the Tribunal.

   10. The Tribunal also took interview of the applicant. The applicant submits that he does not know under which law of the Migration Act he needs to give [two interviews] for one claim for genuine protection. The Tribunal did not explain this issue so the Tribunal made a mistake in this regard.

   11. The Tribunal failed to comply with the Migration Act. The Tribunal wrongfully rejected the applicant’s genuine claim. The Tribunal collected information from the applicant then found a way and used that way to reject the applicant’s claim. In some instances it used the differences between the interview to the Department and to the Tribunal. The Tribunal compared the given information and find some dissimilarity among the information and rejected the claim which is not accepted by the applicant. The Tribunal’s assessment is not allowed by the Migration Act. The Tribunal would expected him to have left as soon as possible after receipt of his visa to Australia or, if he wanted to remain for the birth of his baby to have planned to leave in early December. This is an unfair finding by the Tribunal; the applicant does not accept this statement. The Tribunal can’t make this comment about the departure situation of the applicant when his wife was pregnant. The Tribunal made a mistake in this regard.

   12. The Tribunal did not consider the applicant’s public profile. The Tribunal has no idea about politician’s public life and public profile. This knowledge and idea is very important when to review a genuine protection application based on genuine gear and risk for life and where the threat for his life is fully present. The Tribunal reviewed the applicant in a way which is not allowed by the Migration Act and also not allowed by the Refugee Convention.

   13. The Tribunal made a procedural mistake. The Tribunal did not follow Refugee Convention. The Tribunal’s grounds for rejection were not evidenced by any references or documents. The Tribunal willingly rejected the claim. The Tribunal was not fair and just according to the Migration Act. The Tribunal used excessive power to reject the applicant’s review application. The Tribunal did not act according to substantial justice and the merits of the case. The Tribunal did not consider the circumstances of the applicant and his genuine claim for protection in Australia for his fear for his life. The Tribunal has the information about the relationship between the police and the ruling party but the Tribunal did not want to use that knowledge to assess a genuine claim for protection.

Minister’s Submissions

1. The Minister contends that the applicant has not raised an arguable case of jurisdictional error on the part of the Tribunal, and that these proceedings should accordingly be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Grounds of the application

1. It is alleged in grounds one and two of the application, and at [11] of the applicant's written submissions, that the Tribunal breached its obligations under s.424A of the Migration Act with respect to inconsistencies in the applicant's evidence and its subsequent finding on his credibility.

2. The Minister submits that the applicant has failed to identify any “information” which enlivened the Tribunal's obligations under s.424A(1) of the Migration Act, and that there was no such

   
   

   “information” relied upon by the Tribunal. In ground two the applicant points to country information relied upon by the Tribunal, however this clearly came within the exception under s.424A(3)(a) and did not enliven any s.424A obligations.

3. The only information relied upon by the Tribunal which did not come within the exceptions under ss.424A(3)(a), (b) or (ba) of the Migration Act was information given by the applicant during his interview with the delegate. However, that information did not contain in its terms “a rejection, denial or undermining” of the applicant's claims: SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [17]. Rather, the Tribunal's comparison of the evidence provided by the applicant revealed inconsistencies. This formed part of the Tribunal's reasoning process and therefore was not “information” within the meaning of s.424A(1) of the Migration Act: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ.

4. It is noted that the Tribunal did not err by putting information to the applicant (see CB 175-177) in circumstances where s.424A of the Migration Act was not enlivened: SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30] per Dowsett, Bennett and Edmonds JJ.

5. Ground one also takes issue with the Tribunal’s testing of the applicant's knowledge of the BNP.  The Minister submits that it is properly the role of the Tribunal to test an applicant's claims.  In the present case, this involved testing the applicant's claim that he was a member of the BNP, and this does not establish any jurisdictional error on the part of the Tribunal.  Further, the Tribunal does not fall into error for comparing the applicant's knowledge with available country information, as occurred here:  Minister for Immigration and Citizenship v SZLSP & Ors (2010) 187 FCR 362 at [38].

6. Ground one otherwise takes issue with the Tribunal’s credibility findings and the Tribunal's decision as to the weight to afford to evidence.  Both of these matters were findings of fact within the jurisdiction of the Tribunal and to cavil with those findings seeks impermissible merits review: Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at 41 per Mason J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 280-282.

7. Ground three of the application and [5] of the applicant's submissions, despite making a number of allegations, actually take issue with the Tribunal's rejection of the applicant's claims. The Minister submits that the Tribunal's findings were reasonably open to it on the material before it and for the reasons which it gave, and contends that ground three goes no higher than to seek impermissible merits review.

8. Contrary to the suggestion made in this ground, the Tribunal was not required to present evidence to support its findings.  There is no requirement that the Tribunal engage in an uncritical acceptance of any and all allegations made by an applicant: Randhawa v MinisterforImmigration,Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451-452 per Beaumont J. The Tribunal is not under any obligation to present rebutting evidence in support of its conclusions: Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 at 348 per Heerey J. Contrary to the allegation at [5] of the applicant's submissions, the Tribunal is not under any obligation to conduct inquiries to gather information to support the applicant's claims: Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at 436; Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575 at 586 per Keane CJ, 589 per Emmett J. If the Tribunal was not satisfied of the applicant's claims, then it was bound to affirm the decision under review, as occurred here: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.

Additional allegations made in applicant's submissions

1. The applicant alleges in [10] of his written submissions that the Tribunal breached its obligations under section 425 of the Migration Act by “interviewing” the applicant after he had already been interviewed by the Minister’s delegate. The Minister submits that the Tribunal invited the applicant to a hearing as it was required to do so by s.425(1) of the Migration Act, (CB 132-133) and that no jurisdictional error is established in this regard.

2. The applicant also alleges at [8] of his written submissions that the Tribunal erred by making its decision on the basis that the applicant had not been involved with BNP politics in Sydney.  The Minister contends that the Tribunal did not make its decision solely based on this finding. 

3. The applicant alleges at [13] of his written submissions that the Tribunal failed to consider the impact of the relationship between the police and the ruling party in Bangladesh.  However the Minister contends that the Tribunal considered the evidence provided by the applicant in relation to the actions of the police in Bangladesh at [19]-[22] and [30]-[35] of the Decision Record.

4. The Minister contends that the remaining allegations made by the applicant in his application and in his written submissions seek to cavil with the merits of the Tribunal decision.

Consideration

1. At the show cause hearing the applicant indicated that he did not have any oral submissions to add in support of his written submissions.  The Minister’s written submissions were then translated to him and, in response, he indicated that he disagreed with the Tribunal’s findings in respect of the applicant’s supporting documentation and his credibility.  The applicant then made substantive submissions relating to the danger he would be in if returned to Bangladesh and asked the Court if he could submit further documentation in support of his Protection visa application.  It was explained to the applicant that the function of this Court in its current jurisdiction is to review the Tribunal’s decision and ascertain whether there has been any error of law, not to decide if the application should have been granted a Protection visa or assess the merits of his claim.

Grounds 1 and 2

1. Grounds 1 and 2 of the application take issue with a number of the Tribunal’s findings.

2. The first allegation is that the Tribunal did not give satisfactory reasons for not accepting the applicant was a BNP politician.  In the particulars of Ground 1 and 2, the applicant has reproduced or a number of extracts from the Tribunal’s findings in respect of the applicant found at [12]-[22] of the Decision Record (CB 187-190).  The nature of how exactly the applicant disagrees with these findings and the reasons given for them is unclear, however, on a fair reading of these extracts the Tribunal has given detailed reasons for its findings that were open to it on the material before it.  These findings were findings of fact within the Tribunal’s jurisdiction and the applicant seeks to engage the Court in impermissible merits review (see [26] above).  This aspect of the grounds raises no arguable case for the relief claimed.

3. The next aspect of these grounds pleads that the Tribunal breached its obligations under s.424A of the Migration Act with respect to inconsistencies in the applicant’s evidence and its subsequent credibility findings. Section 424A of the Migration Act states:

   Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)  invite the applicant to comment on or respond to it.

   (2)  The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies--by one of the methods specified in section 441A; or

   (b)  if the applicant is in immigrationdetention--by a method prescribed for the purposes of giving documents to such a person.

   (2A)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)  This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application for review; or

   (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)  that is non-disclosableinformation.

4. In SZSTT v Minister for Immigration and Border Protection [2014] FCA 270, his Honour Yates J stated at [18]-[21]:

   18. In his application to show cause, filed in the Federal Circuit Court on 17 April 2013, the appellant raised four grounds:

   1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind dismiss the application, such information was required to be sent to me in written to make a comments, in order to fully compliance of s 424A as decided the majority judge of the High Court in SAAP.

   …

   19. With respect to the first ground, the primary judge noted that the appellant appeared to be alleging that the Tribunal should have alerted him to its intention to dismiss his application so that he could have an opportunity to comment on it before the Tribunal did so. In this connection, the primary judge noted that the first ground raised the application of s 424A of the Act. The primary judge held, correctly, that the Tribunal‘s obligation to provide information under s 424A does not include the Tribunal‘s subjective appraisals, thought processes or determinations: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

   20. The primary judge reasoned that if, alternatively, the appellant was seeking to refer to information upon which the Tribunal based its decision, the Tribunal‘s obligations were subject to the exceptions found in s 424A(3) of the Act. The primary judge held that, with one exception, the information on which the Tribunal based its decision was information which fell within the matters referred to in s 424A(3). The exception was the information that the appellant had previously engaged a migration agent when lodging an application with the Migration Review Tribunal to review the decision to cancel his student visa. The primary judge correctly noted that this information had been put to the applicant pursuant to s 424AA of the Act, which had the effect of discharging the Tribunal‘s obligations under s 424A(1) of the Act in respect of that information.

   21. The primary judge concluded that the Tribunal did not breach s 424A of the Act. I can see no error in that conclusion.

5. I have had regard to the applicant’s written submissions at [11] and Grounds 1 and 2 of his application. Absent any further particularisation, I am of the view that the Minister’s submissions reproduced at [21]-[24] accurately address these grounds. There was no “information” that enlivened the Tribunal’s obligations under s.424A(1), nor was there “information” relied on by it. The country information relied upon by the applicant in Ground 2 came under the exception in s.424A(3)(a).

6. In respect of any claim by the applicant that “information” given by him at the Tribunal hearing should have enlivened the Tribunal’s obligations under s.424A(1) as it was not covered by any of the exceptions contained in the section, this claim cannot be sustained. That “information” did not contain in its terms a rejection, denial, or undermining of the applicant’s claims, rather, the Tribunal compared various pieces of evidence provided by the applicant and found inconsistencies. I am satisfied this formed part of the Tribunal’s reasoning process and, accordingly, was not “information” within the meaning of s.424A(1). In my view, no arguable case for the relief claimed in this aspect of Grounds 1 and 2 has been raised.

7. The applicant has also complained about the intent of the Tribunal when it questioned him in respect of his knowledge of the BNP.  As his Honour Greenwood J stated in SZIPU v Minister for Immigration and Citizenship [2007] FCA 294 at [22]:

   22.    … The Tribunal notes that the mere fact that an appellant claims to fear persecution for a particular reason does not necessarily establish the genuineness of that asserted fear or well-founded fear for a Convention reason and that the role of the Tribunal is to test the evidence on those matters and reach the relevant state of affirmative satisfaction.

   In relation to the current proceedings, this involved testing the applicant’s claim that he was a member of the BNP and there is no error established in this regard.

8. Further, the Tribunal has not fallen into error by comparing the applicant’s knowledge of the BNP with available country information.  Her Honour Kenny J stated in SZLSP (supra) at [38]:

   38. … As the analysis in WALT and SBCC demonstrates, the tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasise, there is nothing objectionable in the tribunal questioning an applicant about his or her beliefs. When the tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the tribunal.

   (CB 194)

   In this proceeding, on a fair reading of the Decision Record, the Tribunal has not fallen into error for comparing the applicant’s knowledge of the BNP with available country information.  There was no prohibition on it from assessing the applicant’s answers against probative material, in this case, the BNP Constitution.  No arguable case for the relief claimed has been raised in respect of this aspect of the ground.

9. Having had regard to Grounds 1 and 2 of the application and the relevant paragraphs of the applicant’s submissions, no arguable case for the relief claim has been raised by the applicant.

Ground 3

1. This ground of the application, effectively, takes issue with the Tribunal’s rejection of the applicant’s claims.  The applicant also states that the Tribunal failed to take into consideration his public profile.

2. At [40] of the Decision Record (CB 194) the Tribunal stated:

   40.    [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 extortion by the Awami League, that he was not forced to close his business and that he did not flee Bangladesh because of any fear of harm from the Awami League.  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.

3. The Tribunal’s findings noted above were reasonably open to it on the material before it.  Further, it follows from its findings at [40] of the Decision Record that the applicant had no political involvement, that he would not have a public profile related to any political involvement in Bangladesh.

4. There is no requirement that the Tribunal engage in an uncritical acceptance of any and all allegations made by an applicant (see Randhawa (supra) at 451-452). I note the applicant’s submissions in respect of this ground (reproduced at [28] above) and, in my view, these accurately address Ground 3 of the application.

5. No arguable case for the relief claimed is raised by this ground.

Applicant’s Written Submissions

1. I have thoroughly read the applicant’s written submissions, insofar as they relate to the pleaded grounds of the application as well as independently of those.  It is not necessary to address a substantial amount of the submissions as they either restate procedural occurrences or seek to engage the Court in impermissible merits review by cavilling with the merits of the Tribunal’s Decision Record.

2. In my view, in respect of these written submissions, the Minister’s written submissions (noted at [29]-[32] above) accurately address any potential claim for relief raised by the applicant and no further consideration needs to be given to these submissions. No arguable case for the relief claimed is raised by the applicant’s written submissions.

Conclusion

1. No arguable case for the relief claimed has been raised by the applicant, either in the grounds of his application, his written submissions, or his oral submissions. Accordingly, the application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) with the applicant ordered to pay the Minister’s costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  25 November 2014