SZUTE v Minister for Immigration & Border Protection
[2014] FCCA 2927
•5 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUTE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 2927 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases Cited: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZUTE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1987 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 5 December 2014 |
| Date of Last Submission: | 5 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Mr Andras Markus (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1987 of 2014
| SZUTE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 26 July 2014, the applicant filed an application for judicial review of a decision of the Refugee Review Tribunal, dated 24 June 2014.
On 4 November 2014, the applicant appeared before me at a directions hearing and directions were made on that occasion directing the applicant to file and serve any further Amended Application, evidence in support and submissions by 21 November 2014. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicant.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
On 21 November 2014, the applicant filed an Amended Application and a document headed Submissions, which appears to be in the same terms as the Amended Application.
The applicant was unrepresented before me this morning, although had the assistance of an interpreter. The applicant confirmed that he relied on the grounds of the Amended Application filed on 21 November 2014. Each of those grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of those grounds. Those grounds are as follows:
“In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
Particulars
RRT unreasonably raised doubt over the applicant’s political activities and the membership of BNP.
The applicant claims to fear serious harm in Bangladesh on the Conventional grounds of his actual or imputed opinion in favour of the Bangladesh Nationalist Party and against the Awami League.
In the statement which was attached with the From 866 C, the applicant stated very systematically how he was associated with the youth wing of BNP (Panchasar Union Jubodal) and built his image among the BNP top leaders by organising a political movement against Begum Zia. The applicant heled the BNP party’s Parliamentary candidate in 1996 during Parliamentary election and in 2000 he became the General Secretary of the Jatiiyabadi Jubo Dal of Punchasar Union.
Applicant claims that the Tribunal and the Delegate both misunderstood the case and made adverse opinion and formed that the applicant’s holding of position of general Secretary in the Jatiyabadi Jubo Dal (Youth wing of BNP) is fabricated and applicant’s evidence is not credible.
The Tribunal’s doubts over the applicant’s membership of BNP party and association with youth wing of the BNP was based on unreasonable assumption.
In the interview with the Department of Immigration and the Tribunal, the applicant was asked several questions over the his affiliation and motivation of joining of the BNP party.
The applicant categorically claimed and presented several documents in support of his claim of association and active participation in the during the election of 2008. The Tribunal asked man unreasonable and irrelevant questions with regards to affiliation with the BNP party. The Tribunal failed to understand the Common practice of Bangladeshi Politics.
Any body who is associated with Youth Organisation of any Party, they become automatically aligned with the major party and all the Party leaders have good relation with the Student and youth leaders of that Party.
The applicant truthfully said to the Tribunal that because of his active involvement of 2008 Parliamentary election, he became a high profile leader of the BNP party in his area. Because of applicant’s growing political activities in that area and his opposition of Mr Edris Ali, a Awami League Candicate, the Awami League Party workers of that area attacked on the applicant’s house on 2 January 2009 in which is wife and mother were insulted and applicant was threatened to be killed.
The Delegate and the Tribunal asked many questions to test the credibility of the oral evidence. The Tribunal raised several unreasonable questions on his nomination of the position of Communication/Publication Secretary by the BNP Party memberes.
The Applicant claims that the Tribunal made a jurisdictional error when it failed to identify accurately social group. The tribunal intentionally asked several irrelevant questions to undermine and to confuse the applicant during the hearing. the applicant claims that he was denied procedural fairness when the Tribunal did not follow the Hearing Rules under the Migration Act of 1958
Particulars:
The Tribunal failed to identify accurately the particular Social group namely a member of BNP..
The applicant submitted that the applicant fears persecution because of having the membership of a particular social group. The applicant can be considered a member of a particular social group, namely a member of the BNP.
All the members of BNP are easily identified by a characteristic or attribute that is common to all members, that being their political affiliation with the party. This characteristic leads to members being distinguished from, the community at large. Accordingly, the BNP can be regarded as being a social group and the applicant is a member of that Party.
The applicant claims that the Tribunal repeated same types of questions to discredit the applicant’s evidence. The applicant claims. that he was denied procedural fairness when the Tribunal did not conduct the Interview in a Judicial manner.
Particulars:
The applicant claims that informations collected by the Delegate is biased and not impartial. The applicant claims that he fled from Bangladesh because of fear of persecution and Political reasons.
The applicant claims that The Tribunal’s finding of reasons is Confused and the test for persecution was not applied according to the Rules of the Migration Act
Particulars
The applicant claims that the test of fear of persecution applies whether the victim has a low profile or high profile. It is fact that high profile leaders are targated easily but it does not mean that low profile political activists are not killed in any attacks. IN reality the low profile political activities are killed first before the big political leaders in the name of security.
The applicant claims that he fears from the supporters of the Awami League party. He fears the Awami League government that can not give effective protection. The applicant believes that he was accused for fales allegation.
On 27 November 2012 his house was raided by RAB and he was accused of arms case. All of the fales cases were made against the applicant due to the applicant’s involvement with the BNP party. Since that time he was hiding in different places of Bangladesh because of fear of harm. The Tribunal did not believe that he has been harassed and humiliated by Awami League leaders and lodged a false illegal arms case against him.
The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant. The Tribunal ignored all other independent information and came on the conclusion. The RRT made unreasonable doubt about the applicant’s documents related with his case
The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.
Particulars
The applicant claims the Tribunal, which is independent judicial body. The applicant has a legitimate expectation from the Tribunal that it would assess the applicant’s claim according to required procedural fairness.
The applicant left Bangladesh because of fear from the Government Authority governed by the Awami League (AL). The applicant believes that there is a real risk that the applicant would suffer significant harm on return Bangladesh.
The RRT ignored the relevant consideration related with complementary Protection set out in s.36(2)(aa). The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds recognised in the Refugee Convention.
Applicant claims that his fear of harm or mistreatment is for the Convention reasons of political opinion and membership of the particular social group.
Applicant’s fear of harm is well-founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh.”(errors in original)
The background of the applicant’s claims and a summary of the Tribunal’s decision were provided by the first respondent in their Outline of Submissions, filed on 25 November 2014. Relevantly, those submissions are as follows:
“Background
3. The applicant is a 35 year old national of Bangladesh. He arrived in Australia in January 2013 on a short term business visa and applied for a PV on 24 January 2013. On 19 July 2013 a delegate of the Minister refused the applicant’s PV application (RD 36). On 9 August 2013, the Tribunal received the applicant’s application for review of the delegate’s decision (RD 56).
Applicant’s Claims
4. The applicant claimed to fear persecution in Bangladesh from Awami League supporters for reason of his involvement in the BNP. The applicant claimed to have a lengthy and active involvement in the BNP, to have held various official positions and, since around 2009, to have held the position of Publicity Secretary for his constituency.
Tribunal’s Decision
5. The Tribunal summarised the delegate’s comprehensive adverse credibility findings at [19] of its decision (RD 113) as follows:
The delegate found that, despite claiming to have held high level positions in the BNP for over a decade and having been heavily active in campaigns, he was vague in relation to his role and profile in the BNP in particular as Communications/Publications Secretary. While he indicated that he was elected to the position in his statement, at interview he had stated that he was offered the position by leaders and then indicated that he was not appointed but collectively people voted for him. He claimed extensive involvement in the party despite claiming to have relocated to Dhaka in 2012 but did not know the address of the party's central office in Dhaka despite claiming to have been closely connected with and known by big leaders of the party in Dhaka. The applicant was unable to provide any details regarding the BNP and its manifesto. The delegate found the applicant's description of his BNP involvement to be vague and found he was never a member of the party or held any position. The delegate found the applicant manufactured his claim to be Publication Secretary and that he was not capable of holding such a position. The delegate found the applicant's account of his escape from the RAB in November 2012 not to be credible. The delegate noted that the applicant obtained a passport and left Bangladesh legally and concluded that the applicant is not wanted by the RAB and police and is of no interest to the authorities. The delegate did not accept that the applicant relocated to Dhaka and noted that the applicant at interview claimed that there were many false cases against him when he went to Dhaka as opposed to first hearing about false cases against him when the RAB visited his home in November 2012 in his statement. The delegate further noted that the applicant indicated that he returned to Munshigonj some seventy five times over the six months he claimed to reside in Dhaka.
6. At the Tribunal hearing the applicant’s evidence was similarly unpersuasive: [33]-[34] (RD 116-117). See also the Tribunal’s account at [27] (RD 114-115) of the applicant’s inability to recall when he was appointed as Publicity Secretary, or give a detailed account of the duties of that position. The applicant’s evidence at the hearing as to incidents of harm and where he had lived was also inconsistent with the written statement attached to his PV application: [28]- [30] (RD 115-116).
7. The Tribunal accepted the applicant is a citizen of Bangladesh, but did not believe any of the applicant’s central claims to engage Australia’s protection obligations. It found as follows.
7.1 The applicant’s evidence regarding his motivation for joining the BNP and his claim to have become an office holder was not credible in light of his lack of knowledge of basic elements of BNP policy and principles and lack of documentary corroboration. On this basis it found the documents tendered at the Tribunal hearing purporting to corroborate his BNP membership were either not genuine or not reliable: [44] – [45] (RD 117-118). Further it did not accept his claim to have held the office of Publicity secretary of the Jubo Dal, or youth wing of the BNP in light of his superficial evidence about that role and because of his age at the time he claimed to have held that position: [46] (RD 118). Furthermore, his evidence regarding his motivation for joining the BNP was vague and unpersuasive: [47] (RD 118)
7.2 The applicant’s evidence regarding the incidents of harm which he claimed to have suffered was inconsistent as between his PV application statement and his oral evidence to the Tribunal: [48] (RD 118)
7.3 The applicant’s evidence regarding where he lived and when he began to be in hiding was inconsistent as between his PV application statement and his oral evidence to the Tribunal: [49] (RD 118)
7.4 As to the claim that false charges were brought against him, the Tribunal noted the applicant’s evidence of details of the alleged charges was vague and it thus found the documents tendered at the Tribunal hearing purporting to corroborate the alleged charges were either not genuine or not reliable: [50] (RD 118-119). It noted he was able to obtain a passport and depart Bangladesh legally [52], [54] (RD 119). It concluded he was of no interest to the authorities: [52] (RD 119).
8. At [55]-[57] (RD 119) the Tribunal summarised each of the applicant’s claims, and concluded the applicant’s credibility was so seriously undermined that there was no reliable evidence to satisfy it that the applicant that the applicant faced a real chance of persecution for a Convention reason in Bangladesh.
9. The Tribunal considered the complementary protection criterion at [58] (RD 120). Having rejected all of the applicant’s claims, the Tribunal also considered the general security situation in Bangladesh and found that it was not satisfied the applicant was a person who engaged s 36(2)(aa) of the Migration Act 1958 (the Act).”
Ground 1 asserts that the Tribunal acted without jurisdiction or in excess of its jurisdiction when it failed to take into account relevant considerations. The particulars relied upon by the applicant appear to be the applicant’s claims in relation to political activities and his membership of the BNP. The particulars also appear to cavil with various adverse findings made by the Tribunal about the applicant’s evidence.
The applicant claimed to have a longstanding association with the BNP and, therefore, to fear harm because of that association from the Awami League authorities and all opponents of the BNP. The Tribunal’s decision record makes clear that it explored with the applicant in great detail the claims that he made and put to him concerns that it had about his evidence and noted his responses. Ultimately, the Tribunal found the applicant not to be credible. In respect of various claims, the Tribunal found the applicant’s evidence to be “shallow, evasive and circular”.
The Tribunal found that the applicant had no evidence to support his claim to have been a member of the BNP and found his evidence in relation to the harm he suffered to be inconsistent with claims made in his protection visa application. The Tribunal had regard to documents provided by the applicant in support of his claims but, having regard to its comprehensive rejection of the applicant’s claims based on his adverse credibility findings, the Tribunal gave those documents no weight and, in fact, found them not to be genuine.
The Tribunal found the applicant’s claims to fear harm because of his political opinion and his evidence in support of those claims to be confused and contradictory. The Tribunal found that the applicant was unable to recall particular events.
The Tribunal rejected the applicant’s claims ever to have had any affiliation with the BNP or to have suffered harm for that reason or to be at risk of future harm for that reason. The Tribunal also considered whether the applicant met the complementary criterion under s.36(2)(aa) of Migration Act 1958 (Cth) (“the Act”) and determined that, based on the findings that it had made, he did not.
Ultimately, the Tribunal found that the applicant’s credibility was so seriously undermined that there was no credible or trustworthy evidence before it upon which to make a finding that the applicant is a Convention refugee or that he is a person in respect of whom Australia has protection obligations.
The Tribunal, therefore, affirmed the decision under review.
There is nothing on the face of the Tribunal’s decision record to suggest that its findings and conclusions were not open to it on the evidence and material before it and for the reasons it gave including its adverse credibility findings. Credibility findings are a matter par excellence for the court (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
It should also be noted that it is well established that the Tribunal is not required to accept uncritically all claims and evidence before it (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In relation to Ground 1, I asked the applicant what were the unreasonable and irrelevant questions that he asserts in the particulars in support of Ground 1 were made to him. The applicant responded how much money he had or how much land he had. Without more, even if those questions were to be irrelevant, they do not by themselves establish jurisdictional error on the part of the Tribunal.
In the circumstances, Ground 1 does not raise an arguable case for the relief claimed.
Ground 2 asserts that the Tribunal failed to consider whether the applicant was a member of a particular social group. It refers again to unparticularised irrelevant questions and asserts that the applicant was denied procedural fairness. When asked to say whatever he wished in support of Ground 2, the applicant said that he needed time to prepare and that he had not had the assistance of an interpreter on the last occasion to explain to him the orders and directions made by the Court on that occasion.
I accept that the interpreter attended the directions hearing late. However, the applicant’s matter was stood down to allow the first respondent’s solicitor, Ms Warner Knight, the applicant and the interpreter to go through the various directions that the Court had made at that time. The applicant was then asked to sign and acknowledge receipt of those Orders, which he did. Plainly, none of the complaints made by the applicant today address the complaints in Ground 2.
To the extent that the Ground 2 asserts that the Tribunal did not identify the particular social group of which the applicant claimed to be a member, such a complaint is misconceived. The applicant did not claim to fear harm by reason of being a member of a particular social group, rather because of his affiliation with the BNP and because of the political opinion with which he would be imputed as a result of that affiliation. Again, whilst reference was made by the applicant to being asked irrelevant questions, none were identified by the applicant this morning in response or in support of that ground.
In relation to the allegation of a denial of procedural fairness, again the applicant said nothing. However, a fair reading of the Tribunal’s decision record and the conduct of the Tribunal’s review does not suggest that there was any denial of procedural fairness to the applicant at any time during the conduct of the review or the hearing or determination of the Tribunal’s review. To the extent that Ground 2 asserts that the Tribunal asked irrelevant questions to undermine and confuse the applicant during the hearing, the Tribunal’s decision record, on its face, does not support such an allegation.
The applicant was given an opportunity to file evidence in support of his application at the directions hearing on 4 November 2014. That evidence could have included a transcript of the Tribunal hearing. In the absence of such evidence being provided to this court, I accept the accuracy of the Tribunal’s decision record insofar as it refers to various exchanges that it had with the applicant about his evidence and the applicant’s responses (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
As stated above, there is nothing in the Tribunal’s summary of its exchanges with the applicant to suggest that the Tribunal asked irrelevant questions to undermine and confuse the applicant during the hearing.
Accordingly, Ground 2 does not raise an arguable case.
Ground 3 again asserts that the applicant was denied procedural fairness and the particulars assert that the delegate was biased and not impartial. In support the applicant said no more than that what he had told the Tribunal was all true. I understand the applicant’s reference to “the delegate” was intended to be a reference to the Tribunal. In any event, such a claim is serious and requires evidence. The applicant was given that opportunity.
Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the RRT’s decision does not appear to suggest that the RRT approached its task other than with a mind open to persuasion. There does not appear to be any evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, Ground 3 does not raise an arguable case for the relief claimed.
Ground 4 asserts that the Tribunal’s finding of reasons is confused and the test for persecution was not applied in accordance with the Act. In support of Ground 4 the applicant said that what he had told the Tribunal was all true. The particulars in support of Ground 4 appear to cavil with findings made by the Tribunal and to misconceive the adverse findings made by the Tribunal in respect of his credibility. The Tribunal’s credibility findings would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The Tribunal’s 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). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
In circumstances where the Tribunal expressly rejected the applicant’s claim to be affiliated at all with the BNP or to suffer harm for any reason related to the BNP, the applicant’s assertion that the test of fear of persecution applies whether the victim has a low profile or a high profile is irrelevant. Again, ground 4 appears more to be in the nature of a disagreement with the findings and conclusions of the Tribunal and therefore invite merits review which this Court can not undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly, Ground 4 does not raise an arguable case for the relief claimed.
Ground 5 asserts that the Tribunal failed to apply correctly the complementary protection provision in s.36(2)(aa) of the Act. The particulars in support of that allegation do not identify in what way the Tribunal failed to apply the correct test. The Tribunal expressly considered the complementary protection criterion. However, having not accepted the applicant’s accounts of events in Bangladesh, the Tribunal considered whether the applicant faced a real risk of significant harm as a consequence of the general security situation in Bangladesh, and concluded that he did not.
Again, there is nothing on the face of the Tribunal’s decision record to suggest that those findings were not open to the Tribunal on the evidence and material before it, and for the reasons it gave. The Tribunal’s conclusion that the applicant was not a person who met the criterion in s.36(2)(aa) of the Act would appear to be open to it, for the reasons it gave.
Whilst I make no final conclusion as to whether or not the Tribunal’s decision is affected by jurisdictional error, none is apparent on the face of the Tribunal’s decision record and none has been identified by the applicant this morning. In the circumstances, I am not satisfied that the application or the Amended Application have raised an arguable case for the relief claimed.
Accordingly, the proceeding before this court should be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 15 December 2014
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Standing
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Statutory Construction
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