SZUXR v Minister for Immigration

[2017] FCCA 276

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 276

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 424AA, 424A, 425, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUXR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2275 of 2014

Judgment of: Judge Cameron

Hearing date: 3 February 2017

Date of Last Submission: 3 February 2017

Delivered at: Sydney

Delivered on: 3 February 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L. Dennis of Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2275 of 2014

SZUXR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh who arrived in Australia most recently on 5 April 2012. On 8 August 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Bangladesh because of, variously, his political opinion, his marriage and because he had contracted tuberculosis. On 23 January 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 of the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The applicant’s claims for protection were made in his application form, at an interview with the delegate on 20 January 2014 and at a Tribunal hearing on 7 July 2014.  As summarised by the Minister in his written submissions, the applicant relevantly made the following claims:

   5.The applicant claimed to fear harm for the following reasons:

   (a)he may be thought to be contagious and will be ostracised because he contracted tuberculosis (which also damaged his eyesight;

   (b)he will not be able to access the same level of medical treatment in Bangladesh as in Australia;

   (c)he was involved in the Bangladesh National Party (BNP); and

   (d)his wife’s family (who have connections to the Awami League (AL)) do not approve of his marriage.

2. The applicant also claimed that would be rejected and humiliated in Bangladesh because he had not been able to complete his studies in Australia.

The Tribunal’s decision and reasons

1. The Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967, or s.36(2)(aa) of the Act.

2. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:  

   6.The Tribunal rejected the applicant’s claims on the basis of comprehensive adverse credibility findings. The Tribunal did not accept the applicant’s claims relating to his involvement in the BNP for the following reasons:

   (a)he made no reference to that claim in his application form;

   (b)his knowledge of the BNP was almost non-existent;

   (c)his evidence about his political activities was inconsistent and unpersuasive;

   (d)his evidence about being attacked by the AL was not persuasive;

   (e)he voluntarily returned to Bangladesh in 2010 and 2012;

   (f)despite arriving in Australia in 2009, he did not make an application for a protection visa until 2013; and

   (g)his claim to have engaged in activities with the BNP in Australia was unpersuasive and unsupported by evidence.

   7.The Tribunal did not accept the applicant’s claims relating to harm from his wife’s family for the following reasons:

   (a)he made no reference to that claim in his application form;

   (b)he provided inconsistent evidence about when he … married;

   (c)his claims about harm at the hands of his wife’s family was unpersuasive and inconsistent;

   (d)he voluntarily returned to Bangladesh in 2010 and 2012;

   (e)his evidence about what harm his wife suffered was unpersuasive and not credible; and

   (f)his evidence about being threatened by his wife’s family while in Australia was inconsistent and unpersuasive.

   8.The Tribunal confirmed with the applicant that he had abandoned his claims to fear harm based on his loss of eyesight and/or his past tuberculosis. The Tribunal also considered the applicant’s claim to fear harm relating to his failure to complete his studies in Australia, but did not accept this claim due to credibility concerns and the failure of the applicant to mention this issue at the hearing.

   9.For those reasons, the Tribunal rejected all of the applicant’s claims …

Proceedings in this Court

1. In his application commencing these proceedings the applicant alleged:

   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.

Ground 1

1. The first ground of the application contained two essential elements.  The first was that the applicant was denied procedural fairness.  The applicant did not particularise in his application, or detail in his address to the Court, in what way he said he had been denied procedural fairness. 

2. The Tribunal’s procedural fairness obligations are codified in div.4 of pt.7 of the Act, the most relevant sections for present purposes being ss.424A and 425 of the Act. A review of the Tribunal’s decision, and most particularly paragraphs 16, 19, 23-25, 27, 30-33, 35 and 37-39, discloses that the Tribunal discharged its s.425 obligation to alert the applicant to issues which might be determinative of the review and also put to him pursuant to s.424AA information from the Bangladeshi Election Commission. It is not apparent to me that the Tribunal failed to comply with its procedural fairness obligations.

3. The second element of the first ground of the application was that the Tribunal was biased.  An allegation of bias should be distinctly made and clearly proved and this allegation satisfied neither of those requirements.  On that basis it ought to be struck out as embarrassing. 

4. However, it suffices to say that the applicant did not advance any argument which sought to demonstrate, and I am not persuaded that evidence exists, that the Tribunal approached the review in a state of mind which was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might have been presented. 

5. For these reasons, the first ground of the application is not made out.

Ground 2

1. The substance of the second ground of the application was a disagreement by the applicant with the Tribunal’s conclusions as to whether he was entitled to a visa in the sense that he faced persecution or significant harm were he to be returned to Bangladesh.  As explained to the applicant at the hearing of this application and as set out earlier in these reasons, the Court is not empowered to reconsider the applicant’s claim to be entitled to a visa. 

2. At the hearing of this application the applicant also advanced arguments concerning why he said he faced persecution in Bangladesh and why, he said, it was appropriate to grant him a protection visa.  Although those submissions were not expressly articulated as being related to the second ground of the application, they raised no issues different from the ones raised in that ground.  None of those matters, or the second ground of the application, discloses a basis upon which the Tribunal’s decision should be set aside for jurisdictional error. 

Conclusion

1. Jurisdictional error on the part of the Tribunal not having been demonstrated, the application will be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 24 February 2017