SZUTX v Minister for Immigration and Border Protection

[2015] FCA 930

FEDERAL COURT OF AUSTRALIA

SZUTX v Minister for Immigration and Border Protection [2015] FCA 930

Citation:	SZUTX v Minister for Immigration and Border Protection [2015] FCA 930
Appeal from:	Application for extension of time: SZUTX v Minister for Immigration & Anor [2015] FCCA 662
Parties:	SZUTX v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number(s):	NSD 339 of 2015
Judge(s):	BUCHANAN J
Date of judgment:	27 August 2015
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa)
Date of hearing:	12 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	20
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	Ms E Warner Knight, Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 339 of 2015

BETWEEN:

SZUTX
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	27 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1.The name of the second respondent be changed to Administrative Appeals Tribunal. 

THE COURT ORDERS THAT:

2.The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 339 of 2015

BETWEEN:

SZUTX
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	27 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter comes before the Court pursuant to an application for an extension of time in which to appeal from a judgment of the Federal Circuit Court of Australia (“the FCCA”).  The application for an extension of time was accompanied by a draft notice of appeal.  The application was made only a relatively short time after the period allowed for an appeal to this Court as of right.  There can be no real prejudice to the respondents if an extension of time is granted but I am not satisfied that it is appropriate in the present case to do so, because the appeal could not succeed. 

2. The applicant is a citizen of Bangladesh who worked as a crewman on ships.  He arrived in Australia in November 2012 while working on a ship and subsequently left this ship whilst it was docked in Australia. He then applied for a protection visa on 6 December 2012.  A delegate of the Minister refused to grant a visa on 27 August 2013.  On 25 September 2013, the applicant applied to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision.  On 1 July 2014, the RRT affirmed the decision of the delegate. 

3. The applicant then applied to the FCCA for judicial review of the decision of the RRT.  The grounds of the application to the FCCA were as follows: 

   1.The Tribunal denied the procedural fairness at the time of the 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. The FCCA summarised the background to the proceedings before it, and the effect of the findings of the RRT, in the following way which I adopt as a convenient summary: 

   5.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. 

   6.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. 

   7.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. 

   8.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. 

   9.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. 

   10.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. 

5. Then the FCCA dealt with the two grounds of judicial review before it and rejected each of them.  I shall return to those matters shortly. 

6. The RRT made specific factual findings which were fatal to the claims for a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Migration Act”). For example, the RRT found (after some discussion):

   49.The Tribunal does not accept that the applicant would have been an office holder in the BNP at any level and finds that he has no affiliation with the BNP.  Given that the applicants evidence is that he only fears return to Bangladesh for reasons of his affiliation with the BNP the Tribunal finds that the applicant is not a person in respect of whom Australia owes protection obligations. 

   50.The Tribunal finds that the applicant is not of interest to the authorities in Bangladesh and that no charges are outstanding against him nor is there a real chance that the applicant would face politically motivated fabricated criminal or other charges for reasons of political opinion.  In this context the Tribunal notes that the applicant has entered and exited Bangladesh on countless occasions including the last occasion after the claimed harm faced by him in 2012. 

   …

   52.The Tribunal finds that the applicant’s credibility is so seriously undermined that there is 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 owes protection obligations. 

   53.The Tribunal does not accept that the applicant is credible in relation to his claimed affiliation, role and profile in the BNP, that he faced harassment and or serious harm at the hands of the AL or the authorities in Bangladesh or that he is of adverse interest to any potential agents of harm for a Convention reason in Bangladesh.  It has also considered whether there is a real chance that the applicant would face persecution for a Convention reason in Bangladesh for reasons of the general security situation, but finds that there is insufficient evidence before it to make such a finding before it.  The Tribunal does not accept that there is a real chance that the applicant will be attacked and face false cases instigated by the AL, that the police or RAB will arrest, jail and/or kill him, that he will be put into crossfire, or that he will be killed or his daughter will be kidnapped or that he will be abducted, killed or disappeared. 

7. The RRT also rejected any suggestion that the applicant was entitled to a protection visa on “complementary protection” grounds under s 36(2)(aa) of the Migration Act.

8. Findings of this character are not reviewable on their merits, either in the FCCA or on appeal in this Court.  The FCCA may only intervene if the RRT has made a jurisdictional error.  This Court may intervene if the FCCA makes an appealable error but this Court also must concentrate on the question of jurisdictional error and has no role in the assessment of the merits of an application for a protection visa. 

9. With those limitations in mind, I may return to the way in which the FCCA assessed the application to that court, before I deal with how the present application should be addressed. 

10. The FCCA found that whether the first ground of the application for judicial review made to that court represented an allegation of actual bias or an allegation that there was a foundation for a reasonable apprehension of bias, neither contention should be accepted.  The FCCA pointed out: 

    12.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. 

    13.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.

11. Then the FCCA dealt with the second ground but concluded that it amounted to a challenge which was beyond the jurisdiction of the FCCA to entertain.  The FCCA said: 

    14.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.

    15.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. 

    16.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. 

    17.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. 

12. Now I may deal more directly with the application to this Court. The first question for attention is whether there is a reasonable explanation for the delay in seeking to appeal. And the second question is whether an appeal would have any utility if an extension of time was granted.

13. In his application for an extension of time the applicant stated in an affidavit why he had not filed an appeal within the time allowed, in the following way: 

    I had a hearing on 9 March 2015 in the Federal Circuit court of Australia. I wanted to apply to the Federal Court of Australia within the 21 days time limitation. I was waiting for the decision letter from Federal Circuit Court of Australia. So that I can include the Federal Circuit Court decision letter with my appeal to the Federal Court of Australia which is a requirement of the application. As I was worried to make the application within the time limitation, on 19/03/2015 I went to Federal Circuit Court to get the decision letter. I was told that the decision letter will be sent to me by post. I received the Federal Circuit Court decision letter on 31 March 2015. On 2 April 2015, I intended to lodge my notice of appeal to the Federal Court of Australia and I found that my time limitation 21 days already expired on 31 March 2015. If I received the decision letter earlier I could apply on time. I apologise for this mistake. I request to the Federal Court of Australia to understand my unavoidable circumstances and accept my appeal to the Federal Court of Australia.

14. It is not necessary for me to embark upon any detailed consideration of the applicant’s contentions.  On any view, the delay was a short one and there would be no prejudice to the respondents if an extension of time was granted.  The first respondent, however, opposes an extension of time on the ground that it would be futile. 

15. The sole ground of appeal appearing in the draft notice of appeal accompanying the extension of time is: 

    That the Federal Circuit Court of Australia made an error in finding that there is no jurisdictional error. 

16. In order to assess whether there would be utility in granting an extension of time, and so that the appeal could be determined without further delay if an extension of time was allowed, I directed that additional material be filed to permit an examination of those matters. 

17. At the hearing of his application for an extension of time, the applicant confirmed that he had not filed written submissions in addition to the affidavit referred to above. I invited the applicant to then say anything he wished in support of the appeal, if an extension of time was granted. The oral submissions (through an interpreter) were quite short.  It was apparent that the applicant had neither the knowledge nor resources to address any concept of “legal” error, or jurisdictional error, much less identify one.  He was confined by those apparent limitations to indicating that his claim for a visa is based on a fear for his life if returned to his own country.  The applicant appeared, at times, distressed as he made these statements.  I do not doubt that he wishes to remain in Australia. 

18. Despite my sympathy for the applicant’s apparent distress, this Court cannot deal with the merits of his claim for a visa.  Clearly enough, he cannot identify any matter which would support his ground of appeal.  No such matter is evident to me from my own study of the material, including the additional material which I directed to be filed. 

19. I see no reason to doubt the correctness of the judgment of the FCCA about the matters with which it dealt.  I see no independent ground upon which to conclude that the RRT made any jurisdictional error.  For that reason it is unnecessary, and would be futile, to grant an extension of time in which to appeal. 

20. In those circumstances, the application for an extension of time in which to appeal should be dismissed.  There is no reason in the present case to depart from the usual rule that costs follow the result. The application will therefore be dismissed with costs. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        27 August 2015