SZUTX v Minister for Immigration

[2015] FCCA 662

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 662

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – refusal of protection visa.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal’s decision was affected by actual bias and failed to take into account the full gravity of the applicant’s claims and circumstances.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Refugee Review Tribunal: ex parte H (2001) 179 ALR 425
SZTWL v Minister for Immigration & Border Protection [2015] FCA 56
Attorney-General (NSW) v Quin (1990) 170 CLR 1

Applicant: SZUTX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2030 of 2014

Judgment of: Judge Smith

Hearing date: 9 March 2015

Date of Last Submission: 9 March 2015

Delivered at: Sydney

Delivered on: 9 March 2015

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms E. Warner Knight of Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2030 of 2014

SZUTX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. The applicant in these proceedings seeks the issue of constitutional writs in respect of two decisions: first, the decision of the Refugee Review Tribunal (“Tribunal”) dated 1 July 2014 and secondly, the decision of a delegate of the Minister for Immigration dated 27 August 2013.

2. The decision of the delegate was a decision to refuse to grant the applicant a protection visa and so was reviewable under pt.7 of the Migration Act 1958 (“the Act”). For that reason it is a primary decision and this Court has no jurisdiction in respect of it: s.476(2)(a). The decision of the Tribunal was to affirm the decision of the delegate.

3. The grounds in the application are:

   1.The Tribunal denied the procedural fairness at the time of assessment of applicant claim because the Tribunal was biased.

   2.The Refugee Review Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances of the decision.

4. For the reasons that follow, neither ground is made out on the material before the Court and the application will be dismissed.

Background

1. The applicant is a citizen of Bangladesh who last arrived in Australia on 15 November 2012 as a member of the crew of a ship.  He jumped ship here and made an application for a protection visa on 6 December 2012.

2. In support of that application he claimed that he feared harm at the hands of members of the Awami League because he was a supporter of the Bangladeshi National Party (BNP) and had been attacked and physically tortured by members of the Awami League for that reason. 

3. On 27 August 2013 a delegate of the Minister decided to refuse to grant the applicant a visa and on 25 September 2013 the applicant applied to the Tribunal for review of that decision.

4. The applicant attended a hearing conducted by the Tribunal on 19 June 2014 with the assistance of an interpreter in the Bengali language.  At the hearing, he gave evidence that he had been appointed as joint secretary in the BNP and that the threats from the Awami League started after he had made ongoing financial contributions to the BNP but the situation did not escalate beyond an annoyance because there was no opportunity to retaliate.  The applicant said that his daughter had been threatened with being kidnapped and that she had had to skip her HSC examinations last year and had taken them in the current year instead.   He claimed that he feared threats in Bangladesh and that his daughter would be kidnapped and he would be killed.

5. The Tribunal made its decision on 1 July 2014.  The Tribunal rejected the applicant’s claim that he had been appointed a joint-secretary of the BNP given his protracted absences as a seaman and his inability to perform his duties as a result of his profession.  Further, in spite of his claim to be an executive member of the BNP the applicant was at the hearing unable to articulate the manifesto, principles, policies and platforms of the party in various campaigns except in the most simple terms.  In light of that, the Tribunal rejected the applicant’s claimed affiliation with the BNP and, further in light of country information concerning the availability of fraudulent documentation from Bangladesh, it gave a letter purportedly from the BNP in relation to the applicant no weight.  Consequently, it did not accept that he was given an honorary appointment to the BNP executive or that he was assaulted at a BNP gathering.  It did not accept that the applicant or his family members faced threats in Bangladesh for reasons of his being affiliated with the BNP.  It found that he was not affiliated with the BNP the applicant would not be of any interest to potential agents of harm in Bangladesh.

6. The Tribunal also found that, given the multiple opportunities the applicant had in his profession to seek protection in various jurisdictions, his failure to do so indicated that he had no subjective fear of persecution and that this was an additional matter undermining his credibility. For those reasons the Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations and in addition that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there was a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. For those reasons the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of the protection visa and affirmed the decision of the delegate.

Consideration

Ground 1: Bias

1. The grounds in the application as noted above were, firstly, that the Tribunal was biased.  This is an allegation of actual bias rather than apprehension of bias.  In Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Gleeson CJ and Gummow J said, at 532 [72]:

   The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. 

   An allegation of actual bias must be distinctly made and clearly proven: Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127].

2. In my view, there is nothing in the evidence before the Court to suggest any form of prejudgment by the Tribunal. It is clear from the Tribunal’s statement of reasons that during the hearing it put to the applicant a number of matters that were inconsistent with his claims. That, however, does not suggest that the Tribunal had made up its mind at that point. Rather, it merely indicates that the Tribunal was, in accordance with its obligations under s.425 of the Act, giving the applicant the opportunity to address the issues that arose in review of the delegate’s decision.

3. Further, even if the applicant were alleging a reasonable apprehension of bias, I would also dismiss the ground.  There is nothing in the material before me that would cause me to conclude that a fair minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the matter: Re Refugee Review Tribunal: ex parte H (2001) 179 ALR 425 at [27]-[32]. For those reasons, the first ground will fail.

Ground 2: Failure to take into account the full gravity of the applicant’s circumstances of the decision

1. The second ground in the application is that the Tribunal’s decision was unjust, and made without taking into account the full gravity of the applicant’s circumstances.  It is tolerably clear that what the applicant means to say by this ground is that the Tribunal did not accept the applicant’s claims and that its decision was unjust because of that.  It is true that the Tribunal rejected all of the applicant’s claims, and that rejection was based upon its assessment of the applicant’s credibility, as well as the credibility of the claims actually made.  It is clear that the Tribunal did not reject the applicant’s credibility simply upon some vague notion of the way in which he presented his evidence (as to which see SZTWL v Minister for Immigration & Border Protection [2015] FCA 56). Thus, it is not true to say that the Tribunal failed to take into account the applicant’s circumstances; rather, it rejected those parts of the circumstances which the applicant put forward as forming the basis of his well-founded fear of persecution for a Convention reason in Bangladesh.

2. Additionally, to the extent that this ground asserts that the decision was unfair or unjust, then it misunderstands the jurisdiction of this Court.  The following statement by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 is apposite:

   The duty and jurisdiction of the court to review administrative action does not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice and error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of that relevant power, and subject to political control, for the repository alone.

3. For that reason, to say that the decision of the Tribunal was unfair or unjust does not give rise to any error that can be corrected in this Court. 

4. Before me today, the applicant’s only submission was that he was appealing for the lives of him and his family to be saved.  That submission also falls to be dealt with by reference to Brennan J’s statement in Attorney-General v Quin.  The Court simply has no power to determine the issues raised by the applicant’s submission. 

5. For all of those reasons, the second ground will be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 26 March 2015