SZUYF v Minister for Immigration

[2015] FCCA 1498

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYF v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1498

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZUYF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2336 of 2014

Judgment of: Judge Driver

Hearing date: 2 June 2015

Delivered at: Sydney

Delivered on: 2 June 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Dennis of Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2336 of 2014

SZUYF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 21 August 2014 seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal decision was made on 28 July 2014.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from Bangladesh.  He claimed a fear of harm in Bangladesh because he is a homosexual.  He claimed to have been in two homosexual relationships in Bangladesh and that when the most recent one was discovered he was beaten and banished from his village.  He fled to Dhaka where he lived until coming to Australia.  In support of his claims, the applicant provided an affidavit signed by his father dated 10 October 2012 disowning him. 

3. The applicant arrived in Australia on 10 November 2012 on a subclass 456 visa.  He applied to the Minister’s Department for a protection visa on 14 February 2013.  He was interviewed by the Minister’s delegate on 15 July 2013.  The delegate refused to grant the visa on 31 July 2013.

4. The applicant sought review by the Tribunal and appeared before it at oral hearings on 17 April and 23 July 2014.  He was supported by the Jesuit Refugee Services who provided a submission to the Tribunal after the hearing.  At the hearing, the applicant produced a document dated 1 October 2012 from the Office of the Registrar of Births and Deaths in the Rampal Union Parishad in support of his claims. 

5. In its decision, the Tribunal accepted that independent country information suggests that homosexuals in Bangladesh are persecuted.  However, the Tribunal found that the applicant had not been truthful in relation to his asserted homosexual relationships.  The Tribunal advanced multiple reasons for disbelieving his claims about his homosexual relationships.  The Tribunal also rejected the harm he claims to have suffered in Bangladesh and his fears about returning there. 

6. First, the applicant’s evidence in relation to his past homosexual relationships was so inconsistent and unpersuasive that the Tribunal was not satisfied that he had ever had any homosexual relationships.  Secondly, while the applicant claimed to have been beaten and expelled from his local village as a result of his homosexual relationship, his evidence in relation to which relationship led to this was inconsistent. 

7. Thirdly, the document advanced from the Chairman of the Rampal Union Parishad created further problems.  The applicant had presented a statement purportedly from the same person in support of an earlier class 456 visa application that said, in effect, the opposite of what the statement said in relation to the protection visa application.

8. Fourthly, the document from the Chairman used to support the class 456 visa application indicated that the applicant had no difficulty in his home area before coming to Australia. 

9. Fifthly, the affidavit provided by the applicant purportedly from his father was also problematic.  While the document indicated that the applicant’s father had disowned him, this conflicted with other evidence that his father organised and paid for his travel to Australia and continued to support him financially here.  The Tribunal was also troubled that there were separate English and Bengali versions of the affidavit and that it appeared that it may have been created in English relatively recently.

10. Sixthly, the applicant’s evidence in relation to his homosexual activities in Australia was vague and unpersuasive. 

11. Seventhly, the Tribunal considered the applicant had not been truthful in relation to assistance he had obtained in the preparation of his protection visa application. 

12. In view of those concerns, the Tribunal concluded that the applicant was not a credible witness.  The Tribunal rejected all of his claims as to his past experiences and concluded that he would not be at risk should he return to Bangladesh.

13. The show cause application contains three grounds:

    1. The decision involved an error of law, an error involving an incorrect interpretation of applicable law or an incorrect application of the law to the facts as found by Tribunal (section 476(1)(c) of the Migration Act 1958).

    2. The decision of the RRT involved an error of law in that the person who purported to make the decision did not have jurisdiction to make the decision (section 476(1)(b) of the Migration Act 1958.

    Particulars: The Tribunal failed to properly apply in its conclusions in respect to the applicant case the evidence of the [distinction] between homosexual [behaviour] identity and persecutory effects of these categories there by ignoring relevant material and asking itself the wrong questions.

    3. The Tribunal failed to use the real test of Persecution and harm to assess the applicant’s case as a homosexual in Bangladesh.

    Particular.

    The Tribunal never asked the question from the applicant that how the homosexuals are treated discretly and persecuted by the authority and mass population of Islamic Religion in Bangladesh. (errors in original)

14. The grounds are difficult to follow and have no logical connection to the Tribunal decision.  They do not, either on their face or in the context of the Tribunal decision, suggest any arguable case of jurisdictional error.  The Tribunal made comprehensive adverse credibility findings against the applicant which were open to it on the material before it.  I see no error in the Tribunal’s approach. The Tribunal met its obligations under the Migration Act 1958 (Cth).

15. I provided the applicant with the opportunity to file and serve an amended application and additional evidence.  He did not take up those opportunities.  Neither he nor the Minister made any written submissions.  The applicant made brief oral submissions today in which he asserted that he is truthful and that he is afraid to return to Bangladesh.  Unfortunately for him, those submissions do not advance the matter any further.

16. I conclude that the applicant is unable to establish any arguable case of jurisdictional error by the Tribunal. I will in consequence order that the application be dismissed pursuant to rule 44.12 (1)(a) of the Federal Circuit Court Rules 2001 (Cth).

17. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  The applicant indicated that he may wish to seek a waiver of any costs awarded.  That is something that he can take up with the Minister’s Department.

18. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

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

Associate: 

Date:  4 June 2015