SZUGQ v Minister for Immigration

[2015] FCCA 3041

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUGQ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3041

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Show Cause hearing – whether a purportedly relevant document was before the Tribunal – document not relevant – no arguable case disclosed – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Applicant: SZUGQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1586 of 2015

Judgment of: Judge Street

Hearing date: 13 November 2015

Date of Last Submission: 13 November 2015

Delivered at: Sydney

Delivered on: 13 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Wong
DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1586 of 2015

SZUGQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision made on 11 May 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh, arrived in Australia on 17 June 2012 as a holder of a Visitor (class TR) subclass 676 visa.  The applicant applied for protection on 13 July 2012 which application was refused by the delegate on 2 August 2013. 

3. The applicant applied for a review of that decision on 28 August 2013 and on 24 March 2014, an earlier Tribunal affirmed the decision of the delegate.

4. The applicant then applied for judicial review and by consent the matter was remitted to the RRT.  On 27 April 2015 before a differently constituted Tribunal, the applicant appeared to give evidence and present arguments and was assisted by an interpreter and represented by his registered migration agent.

5. The applicant completed on 6 March 2015 an appointment of representative and confirmed representative’s contact details in a document signed by the applicant on 11 March 2015.

6. The invitation to hearing by a letter dated 18 March 2015 was sent to the applicant’s representative. 

7. The Tribunal carefully identified in paras.5 to 7 of the material that had been received by the Tribunal in relation to the review and recorded in para.37:

   …providing an opportunity for the applicant to provide additional material and that in response to that invitation post-hearing, the applicant provided two further letters.

8. The grounds in the application are as follows:

   1. The Tribunal failed to consider that my life was at risk.

   2. The Tribunal failed to consider the documents I provided in support of my claim for a protection visa and refused my application.

   3. I request your Honour to consider the harms I experienced in Bangladesh and remit this matter to the Tribunal for reconsideration.

9. The matter was the subject of orders on 23 July 2015 fixing the matter for hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 and providing the applicant with an opportunity to file an amended application, affidavit of evidence and submissions.

10. The applicant filed an affidavit pursuant to those orders that annexed a document dated 4 May which the applicant alleged was sent to the representative to deliver to the Tribunal on 5 May 2012.  There is no other evidence that the applicant has put on to support the delivery of the document by the representative to the Tribunal and I find that the document was not delivered to the Tribunal.

11. In those circumstances, it is not a document which is relevant to establishing any jurisdictional error by the Tribunal. 

12. The applicant was desirous of the court having regard to the document and remitting the matter back to the Tribunal to reconsider its decision and take into account the document annexed to the affidavit sworn on 6 August 2015. 

13. The Court has no power to send the matter back to the Tribunal to reconsider its decision unless satisfied that there is a jurisdictional error. 

14. The applicant maintained that the document was relevant and that his life was in jeopardy. 

15. This Court has no power based on compassionate grounds to revisit a decision of the Tribunal. 

16. I find that the document that was annexed to the affidavit was not before the Tribunal and in those circumstances is not relevant to the application for judicial review. For those reasons of irrelevance the document was rejected from being admitted into evidence. 

17. Before the Tribunal, the applicant claimed he was an activist of the Bangladesh Nationalists Party (BNP) and that because of his political activism, he was targeted by thugs of Awami League and had false charges laid against him.  In particular, the applicant claimed he was attacked on 22 November 2011 and required hospitalisation.  The applicant claimed that prior to coming to Australia, he was subject to extortion.  The applicant alleged, if returned to Bangladesh, he feared being killed or subjected to physical harm and mistreatment. 

18. The applicant also made two additional claims following the remittal of the proceedings to the RRT. The applicant alleged he had converted to Christianity and if he returned to Bangladesh, he would be targeted by Muslim extremists and his relatives. The applicant also claimed he was on the list of BNP workers in Bangladesh who would be targeted by police, taken away and found dead.

19. The Tribunal identified significant concerns in relation to the applicant’s credibility and found the applicant’s evidence in relation to the alleged attack upon him to be inconsistent and not credible. 

20. The Tribunal found that certain documents provided by the applicant were ones that could be easily obtained by reason of forgery or fraud and because of that placed little weight on certain document the applicant alleged supported his claim.

21. The Tribunal found the applicant had not been truthful in relation to the core aspects of his claims and the Tribunal found in relation to the allegation of conversion to Christianity, the applicant could safely and reasonably relocate to Dhaka if he was to return to Bangladesh. 

22. It was in those circumstances the Tribunal found the applicant did not have a well-founded fear of persecution in Bangladesh as a result of his religion or his membership of a particular social group of Muslims converted to Christianity or persons perceived as Christian converts.

23. The Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under ss.36(2)(a) and 36(2)(aa) were not satisfied. 

24. I accept the first respondent’s submission that grounds 1 and 3 are an impermissible request to review the merits of the matter and do not disclose any arguable jurisdictional error.

25. In relation to ground 2, it is clear that the Tribunal took into account the documents provided by the applicant to the Tribunal relevantly in paras.5-7, 12, 14, 31, 33, 36 and 40. 

26. For the reasons I have given, a document that is not before the Tribunal is not capable of making out any jurisdictional error.  Ground 2 fails to identify any arguable jurisdictional error. 

27. The application fails to disclose any arguable case. I am satisfied this is an appropriate case to exercise the Court’s powers under r.44.12. The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 November 2015