SZUXX v Minister for Immigration

[2017] FCCA 2346

00FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXX v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2346

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, 424A, 425, 474

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

Applicant: SZUXX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2292 of 2014

Judgment of: Judge Cameron

Hearing date: 1 February 2017

Date of Last Submission: 1 February 2017

Delivered at: Sydney

Delivered on: 1 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2292 of 2014

SZUXX

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 on 11 October 2012. On 29 October 2012 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 his political opinion. On 13 August 2013 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 to 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 as set out in a statement attached to his protection visa application were summarised by the Minister in his written submissions in the following terms which I adopt:

   5.The applicant claimed to fear harm at the hands of the Awami League (AL) on account of his political activities ….  The applicant claimed that his father was a well-known leader of a branch of the Bangladesh National Party (BNP).  In 2001, the applicant joined the Chattra Dal (the student wing of the BNP) and became politically active.  The applicant was subsequently threatened by the AL regularly and attacked on 21 July 2009 and 25 October 2011.  In July 2012, the AL burnt down his department store.

2. The delegate interviewed the applicant about his claims on 5 February 2013.  At the interview the delegate put to the applicant that he had previously applied for visas to travel to the United Kingdom. The applicant initially denied this until confronted with fingerprint evidence.  He then admitted that he had made two applications using another name and date of birth, both of which were refused.  After the interview the applicant’s representatives provided a submission in which they stated that the applicant had not known the name his agent had used to make the British applications and that he had not disclosed the applications because he had been afraid that he would be deported if he did so.

3. The applicant also attended a hearing before the Tribunal on 2 and 10 July 2014.  Prior to the hearing he provided the following documents:

   a)a letter dated 14 February 2014 signed by the president of the BNP in the applicant’s home district confirming that the applicant’s father had been the president of his BNP branch until his death in 2003;

   b)a letter dated 15 November 2012 from the principal of a named college confirming that the applicant was a student at the college until 2003;

   c)a letter dated 20 April 2014 from the former president of the Chattra Dal at the applicant’s former college, stating that the applicant was the organising secretary of their college branch of the Chattra Dal in 2001 and 2002;

   d)two identical letters dated 25 May 2014 and 26 May 2014 respectively, signed by the same person, stating that the applicant had been an executive member of his home district Chattra Dal committee and the joint convener of a Chattra Dal committee formed to free a BNP Member of Parliament who had disappeared.  The letters also stated that since the MP’s disappearance the Awami League had brought false allegations against thousands of BNP activists and the applicant feared that he would be arrested;

   e)a letter dated 15 May 2014 referring to the applicant’s political activities in Bangladesh and the alleged attacks he had faced in 2009, 2011 and 2012;

   f)three newspaper articles referring to the alleged attacks on the applicant on 21 July 2009 and 25 October 2011 and to the burning of his store in July 2012;

   g)a letter dated 29 April 2014 from a former BNP MP stating that the applicant was a devoted BNP activist; and

   h)a letter signed by the convener of the BNP in Australia stating that the applicant has been a leading activist for the BNP in Australia since his arrival.

4. At the Tribunal hearing the applicant raised an additional claim that he feared harm from members of his family arising out of a land dispute.  He claimed that his father had verbally passed on to him a residential property but that after his father’s death his uncles demanded the property.  The applicant claimed that one of his uncles, who was wealthy and had various connections, including to the Awami League, had possession of the property and had warned him not to take any action in relation to it.  He claimed that he had not taken any action because of those warnings and because he feared that his immediate family in Bangladesh would be harmed. 

5. The applicant also claimed that he had ceased studying in 2003 but had continued to hold roles within the Chattra Dal although he was no longer a student.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, 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 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:

   6.The Tribunal set out the applicant’s claims, what occurred before the delegate and the Tribunal, and country information it considered relevant.  The Tribunal then came to assessing the applicant’s claims and rejected them on the basis of adverse credibility findings. In particular, the Tribunal made the following key findings:

   (a)he would not have maintained his position in the Chattra Dal after ceasing to be a student in 2003;

   (b)he failed to disclose his attempts to go to the UK;

   (c)the documents he provided in support of his claims were ‘highly suspect in a number of ways’ [namely, they were dated in the period immediately before the Tribunal hearing, were replete with spelling errors and two identical letters from the same author were placed on two separate letterheads.  Further, the newspaper articles provided displayed clear signs of alteration and the date of the alleged burning of the applicant’s shop in one of them was at odds with the date provided by the applicant];

   (d)he delayed leaving Bangladesh and making an application for a protection visa and was able to leave Bangladesh without difficulty; and

   (e)his failure to ‘articulate policies or elements of the BNP platform’ supported the conclusion that he was not a member of the Chattral Dal.

   7.For those reasons, the Tribunal did not accept that the applicant would face harm on account of any political opinion. The Tribunal also rejected the applicant’s claim about a family land dispute in light of its credibility findings, the absence of any supporting evidence, the lateness of the claim, and because there was no Convention nexus in any event.

   (References omitted)

2. The Tribunal also noted that it had considered the applicant’s claims to have been involved in BNP activities in Australia as set out in the letter from the convener of the BNP in Australia.  It noted that it had found that the applicant had tendered false and fraudulent documents in support of his claims and so gave no weight to the letter.  The Tribunal found that even if it accepted that the applicant had been involved with the BNP in Australia, it would find that he had done so solely for the purposes of strengthening his claim for protection.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Second Respondent made an error misunderstanding the applicant claim incorrectly assess the claim.  Particulars: The applicant said that he belonged to the Chatradal, the student wing of the BNP.  He was the leader of the Chatradal not as a leader of the BNP.  The presiding member of the RRT asked questionaries considering him as the leader of the BNP not as the leader of the Chatradal.  The question he asked about the manifesto of the BNP or the time of the interview he may not remember the ideological points of the Party.  In the real sense the Party leadership is considered by the Party men due to their prolong attachment with the party politics, financial stability, social position and having strong cadre groups not based on whether the person know about the manifesto of the Party or not.  The presiding member had negated all of his corroborative documents due to a single question the applicant could not meet.  The made an error in taking into irrelevant consideration in deciding this case.

   2.The Applicant failed to attend the procedural fairness.  Particulars: The Second Respondent made a pre-occupied decision in deciding the claim.  The second Respondent did not provide an opportunity to the applicant to make comment on the matter which the Respondent was relied on to give the decision.  The Second Respondent made an error in ignoring materiality of the case.

Ground 1

1. In substance, the first ground of the application does no more than raise issues inviting the Court to undertake merits review.  As explained to the applicant at the hearing of this matter, and as set out earlier in these reasons, the Court is not empowered to do that.  Subject to those general comments, the following specific matters might usefully be addressed.

2. The first is that the applicant alleged that the Tribunal had misunderstood his claims.  I do not agree.  The applicant’s claims were simple and straightforward and as the Tribunal’s summary of the applicant’s claims, further summarised earlier in these reasons, discloses, it was aware of what the applicant alleged, and dealt with those allegations.

3. Secondly, contrary to the allegation made in the first ground of the application, the Tribunal did not ignore the documents which the applicant placed before it.  Rather, it simply did not accept their genuineness, in that regard saying:

   Further, the Tribunal notes country information indicating that fraudulent documents are readily available in Bangladesh.  The Tribunal finds given these factors that the documents submitted by the applicant are not genuine or reliable and gives them no weight.

   Those sentences, from para.169 of the Tribunal’s decision, are preceded by a critical analysis of the documents which the applicant had relied on.  The Tribunal’s expressed reasoning on the documents in question was well open to it.

4. Thirdly, no irrelevant considerations were identified by the applicant as having been taken into account by the Tribunal, and none is independently apparent.

Ground 2

1. The first assertion in the second ground of the application was that the Tribunal had made “a preoccupied decision”.  I understand that to mean that the applicant alleges that the Tribunal had made up its mind before it undertook the review.  That is an allegation of actual bias, and an assertion which needs to be distinctly made and clearly proved.  It was not distinctly made and certainly not particularised.  On that basis alone, it should be struck out as embarrassing.

2. However, it is sufficient to say that the Tribunal’s summary of the facts and allegations before it, and its reasoning in relation to those matters, disclose a conscientious approach to its review task which is not supportive of the conclusion that the Tribunal had a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might have been presented.

3. The second element of the second ground of the application was that the Tribunal should have put certain matters to the applicant so he could respond to them or otherwise deal with them. That element of the second ground of the application appears to rely on ss.424A and 425 of the Act. It is not apparent that any information meeting the criteria of s.424A(1) existed in this matter, and so there was no such material which had to be notified to the applicant.

4. Consideration of the Tribunal’s summary of the hearing it afforded the applicant discloses that it put numerous matters to the applicant, and asked him to address its concerns on a number of matters, such that he was well aware of the issues which would be determinative of his review.  For these reasons, the denial of procedural fairness propounded in the third sentence of the second ground of the application is not made out.

5. The final matter raised in the second ground of the application was that the Tribunal “made an error in ignoring materiality of the case”.  This allegation was not addressed during the course of oral submissions and, as expressed, is meaningless.  It certainly does not identify any arguable jurisdictional error on the Tribunal’s part.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  27 September 2017