SZUZD v Minister for Immigration
[2016] FCCA 1883
•16 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUZD v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1883 |
| Catchwords: MIGRATION – Application for review of Tribunal decision – whether Tribunal failed to provide reasons – whether Tribunal failed to apply correct test – whether Tribunal denied applicant procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 422B, 424A, 425, 476 |
| Cases cited: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 |
| Applicant: | SZUZD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2409 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 16 June 2016 |
| Date of Last Submission: | 16 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2016 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 27 August 2014 is dismissed.
The applicant pay the first respondent's costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2409 of 2014
| SZUZD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 27 August 2014, seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal) made on 6 August 2014, which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.
Background
In evidence before the Court today is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). From that material, the following background is evident.
The applicant is a citizen of Bangladesh who arrived in Australia on 13 July 2007 as the holder of a short-term business visa [temporary work (skilled) visa] (CB 13). He applied for a protection visa on 23 July 2013 (CB 1 to CB 25).
The applicant’s claims to protection were initially set out in a written statement which accompanied his application for the visa (CB 26 to CB 28). In that statement, the applicant claimed to fear harm if he were returned to Bangladesh from his father.
The background to this was that he said he came from a poor family. His father sent him to work in Japan in 1988 and he sent money back to his father in the belief that his father was looking after the family and saving money for the applicant on his return.
When he returned to Bangladesh some 11 years later, in 1999, he found that his father had, “spent all the money”. The applicant said that he had had a “major” falling-out with his father and their relationship “was destroyed”. He then said that he made the decision to come to Australia with the hope of finding a good job where he could use his trade skills and to try to start a new life “free of harassment” (CB 26.6).
In his statement, the applicant said that he had worked in several places in Brisbane and then in Sydney. He said that although his visa expired, he did not receive notification of this as correspondence sent to his Brisbane address was not forwarded to him in Sydney. This was said to have occurred sometime between December 2010 and February 2011.
The applicant said that he feared to return to Bangladesh because he had been worried by “his father and his associates” and that his life would be in danger from them if he were to return.
The Minister’s delegate refused the application for the visa on 22 January 2014 (CB 46 to CB 55). The Minister’s delegate found that the applicant’s claims had no connection with the Refugee’s Convention and therefore did not meet one of the criteria for the grant of the visa (CB 53). The Minister’s delegate also found that the applicant’s circumstances did not meet the other criterion for the visa, that is, complementary protection (CB 54).
The applicant applied for a review to the Tribunal on 22 February 2014 (CB 56 to CB 61). He was assisted and represented by a registered migration agent (CB 59) who also appears to have been the lawyer who prepared the grounds of the application to the Court (see further below). The applicant was invited to, and attended, a hearing before the Tribunal on 5 August 2014 (CB 66 to CB 70). The applicant gave evidence to the Tribunal on that occasion.
The Tribunal affirmed the delegate’s decision. It is the case that, despite the opportunity given to the applicant by orders made previously in this matter, he has not provided any evidence, for example, by way of transcript, of what occurred at the Tribunal hearing.
The only account in evidence before the Court of what occurred at the Tribunal hearing is what the Tribunal reports in its own decision record. In this light, it is important to note what the Tribunal reports at [7] of its decision record (at CB 112):
“I explained to the applicant the legal requirements for the grant of a protection visa. He said that he realises that he does not meet the Refugee’s Convention criterion. He understood that the harm he fears is for private family reasons arising from a dispute over money and not for any Refugee’s Convention reason. I explained, and he agreed, that his claims would be assessed against the complementary protection criterion.”
The Tribunal reports on the applicant’s evidence as to his personal circumstances in relation to his father and family and relevant past events ([8] at CB 112 to [13] at CB 113). The Tribunal’s subsequent analysis and its findings are summarised in the written submissions filed by the Minister in this matter. That summary is set out at paragraphs 7 to 9 of the Minister’s written submissions. They are, in my view, a fair summary of the Tribunal’s analysis and findings and for the sake of convenience I adopt them for the purposes of this judgment today ([7] – [9] of the Minister’s written submissions):
“[7] The Tribunal noted that the applicant had conceded at the Tribunal hearing that he did not meet the Refugee Convention criterion (at [7], [19]). The Tribunal also noted that the applicant had not advanced claims that he had a well-founded fear of persecution for a Convention reason (at [19]). Because the harm the applicant claimed to fear was in relation to private and personal reasons arising from a family dispute over money, the Tribunal found that the applicant did not satisfy s 36(2)(a) of the Act (at [19]).
[8] The Tribunal was not satisfied, on the basis of the applicant’s written claims and oral evidence, that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk that he would suffer significant harm from his family members as he claimed (at [21]). This was for the following reasons:
8.1 The applicant was able to reside in Bangladesh for seven or eight years after he claimed his father and brothers-in-law first expressed an intention to harm him, during which time he had no direct contact with nor experienced any form of harm from them, and the Tribunal did not accept his claim to have been living in hiding for this period (at [22]).
8.2 The Tribunal considered the applicant had exaggerated the degree of harm posed to him by his family members. The Tribunal found that the evidence indicated that either his family did not continue to make genuine attempts to locate and harm him or that it was not possible for them to do so and further, that he faced no real risk of harm from his family over the period he remained in the same city as his family (at [23]).
8.3 The applicant’s willingness to return to Bangladesh in 2008-2009 was inconsistent with the existence of a real and genuine risk of significant harm and was a further indication that he had exaggerated the risk of harm he faced (at [24]).
8.4 The Tribunal found that had the applicant genuinely held fears for his safety, he would not have been willing to return to Bangladesh in 2008-2009 (at [24]).
8.5 The applicant’s failure to make inquiries as to seeking protection during his numerous trips outside Bangladesh over the period between his return from Japan and his departure for Australia was inconsistent with the existence of a real and genuinely held risk to his safety (at [25]).
8.6 The applicant’s delay in applying for protection in Australia for a period of three years after the cancellation of his Subclass 457 visa was inconsistent with holding a genuine fear for his life or safety in Bangladesh (at [26]).
[9] Having found that the applicant had exaggerated the degree of harm he faced in Bangladesh and that the evidence demonstrated that he was not at risk of serious harm over the period that he remained in Bangladesh after he claimed to have been first threatened, the Tribunal found that the applicant would not face a real risk of significant harm if he returned to Bangladesh (at [27]).”
Application Before the Court
As I said earlier, the grounds of the application to the Court were prepared by the applicant’s lawyer, who was also the migration agent who assisted him before the Tribunal. The grounds are in the following terms:
“1. The Refugee Review Tribunal has failed to provide reasons for its decision pursuant to section 36(2)(aa) of the Migration Act.
Particulars
In dealing with the Applicant's claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the RRT explicitly failed to provide separate reasons to its consideration under section 36(2)(a) of the Act.
2. The RRT has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958
Particulars
In dealing with the Applicant's claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the Refugee Review Tribunal explicitly failed to disaggregate the statutory formulae under section 36(2)(a) and 36(2)(aa) of the Act.
3. The Refugee Review Tribunal denied the Applicant's procedural fairness.”
The applicant’s lawyer withdrew from his representation of the applicant in these proceedings in February 2016. The applicant therefore appeared before the Court in person. He was assisted by an interpreter in the Bengali language.
When given the opportunity to make submissions to the Court today, the applicant made reference to his claims to protection as had been put before the Minister’s delegate and then the Tribunal. I explained to the applicant that, even if I were to accept everything that he had said to the Tribunal, I could not intervene to assist him unless there was some legal error evident in the Tribunal’s decision record. The applicant explained that he was unable to address the grounds of the application that had been put before the Court by his lawyer. In an attempt to give the applicant the opportunity to at least address the grounds, I asked the interpreter to translate each of the grounds for the applicant. I proceeded on the assumption that the solicitor who drafted the grounds would have acted on instructions from the applicant. The translation of each ground was done to see if this would refresh the applicant’s memory. However, the applicant said that he had nothing to say in respect of each of the grounds.
Consideration
Ground one asserts that the Tribunal failed to provide reasons for its decision in relation to the criterion at s.36(2)(aa) of the Act, that is, the complementary protection criterion. However, in contrast to that assertion, the particulars to the ground appear to complain that the Tribunal failed to provide separate reasons for its finding in relation to the Refugee’s Convention criterion at s.36(2)(a) of the Act.
In his written submissions, the Minister addressed the ground in part on the basis of understanding the ground as being that the Tribunal failed to provide written reasons and I note in this regard the Minister’s written submissions in relation to s.430 of the Act ([12] – [13] of the Minister’s written submissions):
“[12] Subsection 430(1) of the Act requires the Tribunal to make a written statement, where it makes its decision on a review that:
(a) sets out the decision, the reasons for the decision and the findings on any material questions of fact;
(b) refers to the evidence or any other material on which the findings of fact were based, and
(c) records the day and time that the statement is made.
[13] We note that a failure by the Tribunal to comply with s 430 will not necessarily constitute jurisdictional error (see Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [54] per Kenny J, at [85] per Rares J and at [116] per Buchanan J; R v Minister for Immigration and Multicultural Affairs; ex parte Palme (2003) 216 CLR 212 at [48] per Gleeson CJ, Gummow and Heydon JJ and at [57] per McHugh J).”
I accept the Minister’s submissions in this regard. However, having regard to the fact that the Tribunal did actually draft a decision record, it appears that the real complaint in ground one is that the Tribunal did not provide separate consideration, and reasons, as against each of the criteria for the grant of the protection visa. That is, the ground can be understood as asserting that the Tribunal did not provide separate reasons as against the criterion at s.36(2)(a), and separately as against s.36(2)(aa) of the Act.
Further, and in particular, the complaint could be understood as being that the consideration of the bulk of the applicant’s evidence occurred in the context of the complementary protection criterion rather than the Refugee’s Convention criterion.
It must be said that the applicant’s ground has no merit. In its decision record, under the heading of “Consideration of Evidence and Findings” (CB 114), the Tribunal made a number of important findings. First, based on the evidence before it, and noting also the applicant’s relevant concession concerning the Refugee’s Convention criterion, the Tribunal found that the applicant did not satisfy the criterion at 36(2)(a) of the Act, that is, the Refugee’s Convention criterion for the grant of the protection visa ([19] at CB 114). The Tribunal then proceeded to consider the applicant’s evidence and claims as against the complementary protection criterion.
Contrary to what is asserted in the applicant’s ground, the Tribunal did consider the applicant’s claim to protection as against the Refugee’s Convention. Once the Tribunal found that there was no Convention nexus between the applicant’s claims and the Refugee’s Convention, which was a finding that was reasonably open to the Tribunal to make on what was before it, it was not obliged to proceed further in relation to the criterion at s.36(2)(a) of the Act. I cannot see jurisdictional error in ground one.
Ground two asserts that the Tribunal, in essence, conflated the relevant tests under s.36(2)(a) and s.36(2)(aa) of the Act. It must be said again, on any plain, let alone a fair reading of the Tribunal’s decision record, there is no basis for this claim. In its decision record, the Tribunal set out the different criteria at s.36(2)(a) and (aa) of the Act for the grant of the protection visa ([14] at CB 113 to [16] at CB 114). The Tribunal made specific reference to the legal framework for the consideration of the applicant’s claims under s.36(2)(aa) and, in this regard, it made specific reference to relevant Full Federal Court authority ([14] at CB 113 to [16] at CB 114).
The Tribunal’s decision record reveals that it accurately understood the relevant tests and, importantly, applied them to the applicant’s claims and evidence which were before it. On the evidence before the Court, I find that the Tribunal gave proper consideration and applied the correct tests to both the criteria for the grant of the protection visa. Ground two, therefore, is not made out.
Ground three asserts that the Tribunal denied the applicant procedural fairness. No particulars are provided and, as I said earlier, the applicant had nothing to say about this ground. As the Minister, in my view, correctly submits, this is a case to which s.422B of the Act applies, and this makes the matters that are set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule in relation to the matters that are dealt with in that division (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 and Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214).
The evidence before the Court reveals that the applicant was invited to, and in fact attended, a hearing before the Tribunal pursuant to s.425 of the Act. There is no evidence before the Court to suggest that this was not a meaningful opportunity for the applicant to give his evidence and explain his claims.
The Tribunal formed the view that the applicant had exaggerated the degree of harm that he feared from his family. It had difficulty in accepting some of his evidence. It found that some of the applicant’s conduct was inconsistent with a genuine fear of harm. These were all findings reasonably open to the Tribunal to make on what was before it. There is no failure of procedural fairness simply because the Tribunal did not accept the applicant's claims.
It must also be said that no other breach of Division 4 of the Act is evident or is indicated on the material before the Court. In essence, the information that the Tribunal relied on was the applicant's own evidence which the applicant had given to the Tribunal for the purposes of the review, and his written claims which were given for the purposes of the application for the visa. Both sets of information are exempt from the obligation in s.424A for the Tribunal to have put that information in writing to the applicant (see s.424A(3)(ab) and (ba) of the Act).
Further, the Tribunal's subjective view of the applicant's evidence is not information for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190). Nor for that matter can I see any failure of procedural fairness at common law, if that is what the applicant's lawyer was attempting to assert at ground three.
On the evidence before the Court, the applicant was given the opportunity by the Tribunal to give his evidence and explain his claims to protection, and what is also revealed from the Tribunal's decision record is that the applicant knew the case against him and was given the opportunity to explain. Ground three therefore is also not made out.
Conclusion
There is no jurisdictional error arising from any of the applicant's grounds that his lawyer has put before the Court, nor can I otherwise see on the evidence that is before the Court that the Tribunal's decision record is otherwise affected by jurisdictional error. It is appropriate, therefore, that the application to the Court be dismissed, and I will make that order.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 22 July 2016
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