SZUHQ v Minister for Immigration

[2015] FCCA 395

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHQ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 395

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal refusing to grant applicant a Protection (Class XA) visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425

Minister for Aboriginal Affairs & Anor v Peko-Wallsend & Ors (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NABE of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2002) 144 FCR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
Tenterfield Shire Council v Egan, Treasurer and Minister for Energy & Anor (1998) 99 LGERA 193

Applicant: SZUHQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1220 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 10 February 2015

Delivered at: Sydney

Delivered on: 5 March 2015

REPRESENTATION

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

Counsel for the First Respondent: Ms R Francois

Solicitors for the First Respondent: DLA Piper

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

ORDERS

1. The application be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1220 of 2014

SZUHQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an application filed on 7 May 2014, made under section 476 of the Migration Act 1958 (Cth) (the “Migration Act”), the applicant seeks judicial review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), dated 10 April 2014. In that decision the Tribunal affirmed a decision not to grant the applicant a Protection (Class XA) visa.

2. The solicitors for the first respondent, the Minister of Immigration and Border Protection (the “Minister”) (formerly the Minister for Immigration and Citizenship), filed a folder which was indexed, labelled and paginated, containing all documents that may be relevant to the hearing.  The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.   The Minister also read the Affidavit of the Ada Oi-yee Wong affirmed on 24 November 2014, annexing the transcript of the applicant’s Tribunal hearing.

3. The applicant was granted leave to file and serve an amended application and any evidence he wished to rely upon on or before 24 October 2014.  The applicant was also granted leave to file and serve a short written outline of submissions and list of authorities fourteen (14) days before the date of the hearing.  The applicant elected not to file any such documents. 

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister.  Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.  I have not made further attribution as this would make the summary unwieldy.

2. The applicant is a 45 year old male citizen of Bangladesh (CB 12, 49) who arrived in Australia on 20 October 2011 on a temporary business visa (CB 42, 44, 331).  On 18 November 2011, the applicant filed an application for a Protection visa (CB 1-46).  The applicant claimed to fear persecution based upon his support and membership of the Bangladesh Nationalist Party (“BNP”) (CB 18). 

3. By letter dated 19 January 2012, the applicant’s migration agent added claims that the applicant was a member of the following particular social groups: businessmen having opposition; political affiliation as a member and supporter of the BNP; and BNP supporters and members facing extortion and harm from the ‘Awami League miscreants’ (CB 50-146).

4. On 21 May 2012, the applicant’s statutory declaration was emailed to the Department (CB 147-152).

5. On 22 May 2012, the applicant attended an interview with a delegate of the Minister (CB 331).

6. The applicant also at some stage provided documents which purported to be legal documents containing the false charges he claimed had been issued against him (CB 154-197), his tax return for 2010 (CB 198-199), letters of support (CB 200-208) and his trading licence documents (CB 209-219).

7. On 28 May 2012, his migration agent provided further submissions (CB 220-295).

8. On 27 August 2012, a delegate of the Minister refused his application (CB 318-343).  The delegate did not accept the applicant was a witness of credit or that the documents he had provided in support of his application were genuine (CB 339).

9. On 21 September 2012, the applicant’s migration agent filed an application for review of the delegate’s decision with the Tribunal (CB 344-379).

10. On 12 September 2013, the applicant was invited to, and did, attend a hearing before the Tribunal on 6 November 2013 (CB 395: invitation, CB 405: hearing record).  During the hearing the applicant produced further documents (CB 408 to 411). 

11. On 11 November 2013, the Tribunal requested an examination of the applicant’s passport and, in particular, the authenticity of the third page (CB 421).

12. On 12 November 2013, the Tribunal requested the applicant to provide submissions of all claims he maintained, and a statutory declaration from the applicant that his submissions had been read and explained to him and accurately represented his claims (CB 447).  The Tribunal invited him to appear at a further hearing on 3 December 2013 (CB 450).

13. On 22 November 2013, the Tribunal received a report that the applicant’s passport was a genuine passport in which the personal details were correct but which had nonetheless been “altered” (CB 453, cf CB 514 at [31]).

14. On 3 December 2013, the applicant attended a further hearing before the Tribunal (CB 462).

15. On 28 February 2014, the applicant’s migration agent provided further submissions which were verified by the applicant (CB 477-503).

16. On 10 April 2014, the Tribunal affirmed the delegate’s decision (CB 507-517).  The Tribunal held that the applicant was not a witness of credit (CB 514 at [32]) and it did not accept that the documents provided in support of his claims were genuine (CB 516 at [40]).

Current Proceedings

1. The application filed on 7 May 2014 pleads the following grounds of review:

   1. The Tribunal found at paragraph 38 of its decision that, although the applicant was active with the BNP in Australia, he did not face a real risk of harm in Bangladesh because of his attendance at BNP meetings and activities in Australia. The Tribunal did not put this issue to the applicant and give him an opportunity to comment. This was a denial of procedural fairness or a breach of section 425 of the Migration Act 1958 (Cth).

   2. The Tribunal took irrelevant consideration (sic) in deciding this claim, particularly regarding the applicant’s passport issues and the tribunal unreasonably doubted (sic) to find a fault in the applicant’s passport which is not justifiable.

   3. The Tribunal made an error in not considering the complementary protection issues, where the applicant had strong grounds to meet this issue.  The applicant was denied in attaining (sic) natural justice.

Applicant’s Submissions

1. The applicant confirmed at the hearing he had not prepared any written submissions.  In oral submissions, the applicant stated the situation in Bangladesh is still dangerous, there is a lot of political unrest, people associated with the BNP are being killed in Bangladesh and there are many people in gaol in Bangladesh.  He also stated he and his family are associated with the BNP and there have been attempts on his life.  He indicated he will return when it becomes safer in Bangladesh.

2. The applicant also stated the passport noted in the Decision Record belongs to him and he is unaware of what happened to it, but would accept any punishment.

Minister’s Submissions

Ground 1

1. The Tribunal accepted generally that the applicant was a BNP supporter (CB 515 at [37]).  After making that finding, the Tribunal addressed the applicant’s ongoing support of the BNP in Australia at [38] (CB 516) as follows:

   38.    The Tribunal accepts that the applicant has attended some BNP meetings/activities in Australia; he told the Tribunal that he went to a BNP meeting in December 2011 after coming to Australia; that he is gradually getting known and has been nominated for a post in a committee to be formed.  He said that he has attended meetings and that there is a demonstration Martin Place next Monday.  He gave the Tribunal photographs of his attendances at BNP meeting/activities in Australia.  To the extent that the applicant makes the claim the Tribunal does not accept that the applicant fears harm in his country because of his attendances at BNP meeting/activities in Australia or that there is a real chance he will suffer harm amounting to serious harm, or a real risk that he will suffer significant harm, in his country because of his attendance at BNP meeting/activities in Australia.

   (emphasis added)

2. As alluded to by the Tribunal, the applicant made no separate claims about his conduct in Australia (cf CB 501 and 145).  At [38] of the Decision Record the Tribunal in effect finds that if there was such a claim, the applicant had no subjective fear of harm.  That is, the Tribunal rejected the credibility of any claim the applicant could be taken as making due to his conduct in Australia. 

3. In this case, the ‘issue’ of the applicant’s conduct in Australia was not dispositive of the application for review; cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152. First, the applicant’s claims to have attended meetings/activities in Australia were accepted (i.e. no issue arose about that aspect of the claim as it was accepted). Second, in so far as the applicant could be taken to suggest that he feared harm based on that conduct, his overall credit was not accepted. The issue of the applicant’s credit was squarely raised by the delegate and the Tribunal (CB 339-340 and transcript of 3 December 2013 at e.g. P4.30). Accordingly, there was no “issue” which arose in the Tribunal’s findings at [38] of the Decision Record to which s.425 of the Migration Act applied. For the same reasons, there was no denial of procedural fairness.

Ground 2

1. Ground two is misconceived. There is nothing in s.36 of the Migration Act or the structure of the Act which could be construed as excluding from the Tribunal’s assessment of credit the fact that an applicant’s passport has been tampered with: Minister for Aboriginal Affairs v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at at 39-40 per Mason J. It is well established that credibility findings are a matter par excellence for the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. Nor could it be said in any sense of the word to be “unreasonable”.

Ground 3

1. Ground 3 is also misconceived.  The Tribunal plainly did consider the “complementary protection issues”.  After having thoroughly rejected the applicant’s claimed fears of harm, the Tribunal found that the applicant did not meet the complementary protection criteria (CB 517 at [44]).  Further, there was no failure to accord procedural fairness.  This issue was squarely raised in the same manner by the delegate (CB 342) and plainly rested upon the same considerations as the applicant’s claims to be a refugee (cf applicant’s submissions of 19 January 2013 and 28 February 2014 where no separate claims were made with respect to complementary protection).

Conclusion

1. The Minister submits the Tribunal did not err and the application should be dismissed with costs. 

Consideration

Ground 1

1. Ground 1 of the application raises a claim in respect of the applicant’s involvement with BNP activities in Australia.  Specifically, the applicant claims he was denied procedural fairness in this respect because the Tribunal found there was not a real chance or real risk the applicant would suffer harm as a result of these activities, but did not give the applicant any opportunity to comment on these issues.  The applicant did not elaborate on this ground in any further detail.

2. The specific findings of the Tribunal in respect of this issue are reproduced above at [23]. The Minister’s contention is that, having regard to the applicant’s written submissions prepared with assistance of his adviser, the applicant made no separate claims relating to his BNP related activities undertaken in Australia. Having regard to those submissions at CB 145 and 501 and the transcript of the Tribunal hearing (annexed to the Affidavit of Ada Oi-Yee Wong affirmed on 24 November 2014), I accept the Minister’s contention.

3. The Tribunal accepted at [38] the applicant had engaged in some BNP related activities in Australia.  This is not disputed.  However, the Tribunal then stated “[t]o the extent that the applicant makes the claim” it was not satisfied there was a real risk or real chance of harm befalling him as a result of his BNP activities. 

4. His Honour Sperling J stated in Tenterfield Shire Council v Egan, Treasurer and Minister for Energy & Anor (1998) 99 LGERA 193:

   (1)     The plain meaning of cl 6 of the 1996 Order is that compensation will be payable only if the minister determines that it is. The phrase “to the extent, if any” means to the extent of any compensation determined by the minister to be payable.

   (2)     If a more literal reading is favoured by reading “if any” as qualifying the phrase “the extent”, the clause contemplates that there might be no “extent”. Compensation without an extent is no compensation.

   In that case, his Honour considered the meaning of the phrase “to the extent, if any”.  I note that in the current proceeding the Tribunal did not use that exact phrase, however, having regard to the context in which the Tribunal did use the phrase I am of the view Sperling J’s analysis nonetheless applies. 

5. Having regard to the Decision Record, it is clear in the Tribunal’s reasons the applicant’s conduct in Australia was not dispositive of his application before it).  The Tribunal instead did not accept the remainder of the applicant’s claims in respect of his subjective fear of harm in Bangladesh on the basis of adverse credibility findings it made in respect of him.  No issue turned on the applicant’s BNP related activities in Australia (see Decision Record at [39]-[42] (CB 516-517)). 

6. On a fair reading, the applicant’s oral and written submissions did not squarely raise any claimed fear of persecution as a result of the applicant’s BNP related activities in Australia in the nature considered in NABE of 2002 (supra) at [58]. Accordingly, the Tribunal, in effect, found that if there had been such a claim, the applicant had no subjective fear of harm. The extent to which the applicant claimed such a fear was, on a fair reading, to no extent and, as such, no claim was raised.

7. Ms Francois brought to the Court’s attention to the matter of SZBEL v Minister for Immigration and Multicultural Affairs & Anor (2006) 228 CLR 152. In that matter at [18] the High Court sets out three critical aspects of the Tribunal’s findings in that case. In particular, the reasons why the Tribunal rejected the applicant’s credit and keys aspects of his claim, there were three matters that the Tribunal considered implausible. The first was that a personal conversation, when the applicant was in port for ten days, would attract the attention of the Hezbollah and would become public knowledge such that a crew member from the same town had knowledge of it. The second aspect was that the captain of the ship would accuse the applicant of apostasy or involvement in Christianity on the strengths of comments from a crew member. The third aspect was that the freedom of movement the applicant had when the ship was in dock belied the applicant’s claim that the crew considered him a criminal and that the captain had been intending to hand him over to the authorities, suggesting that if the captain had been intending to hand the applicant over, then there would have been more stringent measures in place. At [43], the High Court noted that the delegate had not based his decision on any of the three aspects mentioned above and the Tribunal did not identify that these aspects of the applicant’s claim as important issues. The Tribunal did not challenge what the applicant had said and did not say anything to the applicant that would have revealed to the applicant that these were live issues. Based on what the delegate had decided the applicant should and would have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. At [35] the High Court stated:

   35. …[I]f the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review". …    

8. Ms Francois took the Court to CB 145 being the submissions filed by the applicant’s migration agent to the delegate.  A factual summary of the applicant’s claims are found here.  At paragraph [f] the applicant claims that he is a local supporter and member of the BNP and at paragraph [g] the applicant reports that he will continue to support and be involved in political activities if he returns to Bangladesh.  The applicant’s migration agent was asked to resubmit, in a clearer form, the applicant’s claims.  The applicant’s migration agent lodged further submissions by a letter dated 28 February 2014.  At CB 501 is the summary of claims made to the Tribunal which restated the applicant’s claims above.  At [30] of the Decision Record (CB 501) the Tribunal accepts the country information that supporters of BNP with a political profile, at times, will be targeted for harm.  At [31] of the Decision Record, the Tribunal accepted that the applicant was who he claimed to be and observed that the applicant’s passport had been altered, but not with respect to the applicant’s personal information and noted the lack of any explanation and that there was no evidence as to why or when had the passport been altered.  The critical aspect of the Tribunal’s decision was the adverse credibility finding.  At [33] of the Decision Record, the Tribunal rejected the applicant’s claim that he did not know that his passport had been altered. At [34]-[36] of the Decision Record the Tribunal set out the reasons why it rejected the applicant’s claims. 

9. At [38] of the Decision Record, unlike SZBEL, the Tribunal accepted that the applicant had attended BNP meetings and participate in activities in Australia.  The Tribunal did not accept that he fears any harm in Bangladesh, to the extent that any such claim of feared harm was made, if any. 

10. The current case is distinguishable from SZBEL (supra) in that the conclusion of the Tribunal is not dispositive.  What is dispositive in this case is the credit finding.  Unlike SZBEL this applicant’s claims that he attended BNP meetings in Australia were accepted.  It was the overall claim to have a genuine fear of harm in Bangladesh that was rejected.

11. Consequently, there was no “issue” arising from the Tribunal’s statement at [38] of the Decision Record that engaged any obligation under s.425 of the Migration Act, nor was there a denial of procedural fairness to the applicant. Accordingly, this ground cannot succeed and should be dismissed.

Ground 2

1. This ground alleges the Tribunal took into account irrelevant considerations when dealing with the applicant’s claim, particularly in respect of its findings relating to the applicant’s passport.  Relevantly, the Tribunal found the passport had been altered, put this to the applicant for comment, but did not accept the applicant did not know his passport had been altered (see Decision Record at [33]).  Ultimately, this finding, in conjunction with other findings, was the basis for the Tribunal’s broader finding that the applicant was not a credible witness.

2. In Minister for Aboriginal Affairs & Anor v Peko-Wallsend & Ors (1986) 162 CLR 24 his Honour Mason J stated at 40:

   … In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

   As the Minister correctly submits, there is nothing in either s.36 of the Migration Act or the Migration Act more generally that could be construed as excluding from the Tribunal’s assessment of an applicant’s credibility the fact his or her passport has been tampered with.

3. Further, as stated by his Honour McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] a finding on credibility is the function of the primary decision-maker par excellence, in this case the Tribunal.  The Tribunal gave its reasons for its credibility findings in respect of the applicant and, on a fair reading, these were open to it on the material before it.  This aspect of the ground cannot be sustained.

4. To the extent that the applicant claims that this finding was “unreasonable”, there is no particularisation of such a claim of unreasonableness to support that assertion.  I am satisfied this aspect of the ground cannot be sustained.

5. Accordingly, this ground should be dismissed.

Ground 3

1. Ground 3 of the application alleges a failure on the part of the Tribunal to consider the applicant’s claims under s.36(2)(aa) of the Migration Act, known as the complementary protection criterion. The applicant has not addressed this issue in any further detail.

2. Having regard to the Decision Record, however, the Tribunal ultimately rejected all of the applicant’s claimed fears of harm in Bangladesh (see Decision Record at [42]-[43]).  It then stated at [44]:

   44.    Further in the Tribunal’s view there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this applicant’s case, Bangladesh, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) (‘the complementary protection criterion’).

   On a fair reading, the Tribunal, having thoroughly rejected the applicant’s persecution claims, considered them against the complementary protection criterion, using the correct test, however found there were no substantial grounds for believing the applicant had a real risk of suffering significant harm. 

   Accordingly, there is no error in the Tribunal’s consideration of the complementary protection criterion and this ground should be dismissed.

Oral Submissions

1. The applicant’s oral submissions, noted at [21] above, simply restate his substantive protection claims. These submissions invite the Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272. Accordingly these submissions cannot be sustained. I note for the sake of completeness that the applicant’s submissions in respect of his passport raise no error on the part of the Tribunal.

Conclusion

1. The application and oral submissions put forward by the applicant cannot be sustained.  Further, a fair reading of the Court Book and, particularly, the Tribunal’s Decision Record reveals no error on the part of the Tribunal.  The application should be dismissed with costs awarded to the Minister.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 5 March 2015