SZUZR v Minister for Immigration

[2016] FCCA 981

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUZR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 981

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – no arguable case raised for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 12
Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552
Xie v Immigration Department [1999] FCA 365
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: SZUZR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2453 of 2014

Judgment of: Judge Nicholls

Hearing date: 4 April 2016

Date of Last Submission: 4 April 2016

Delivered at: Sydney

Delivered on: 4 April 2016

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms H Musgrove of Sparke Helmore

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 2 September 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $3326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2453 of 2014

SZUZR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 2 September 2014 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 31 July 2014, which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Background

1. The Minister has filed a bundle of relevant documents (“the Court Book” – “CB”) which was in evidence before the Court. The following background can be ascertained from those documents.

2. The applicant is a citizen of Bangladesh who arrived in Australia on 14 March 2013 on a Short Stay Business (Sub Class 456) visa (CB 14). The applicant applied for a protection visa on 12 April 2013 and was assisted by a registered migration agent (CB 1 to CB 26). The applicant’s claims to protection were set out in his application and in an attached written statement (CB 27 to CB 31).  The applicant provided various documents in support of his claims (CB 32 to CB 109).

3. The applicant claimed to have been persecuted by Muslim fundamentalists, the Bangladesh Nationalist Party (“BNP”) and

   
   

   Jamat-e-Islami (“JEI”) activists in Bangladesh due to his minority Buddhist religion. The applicant claimed that he was assaulted by BNP members, his father was killed by fundamentalist Muslims and that his brother was tortured. The applicant claimed to fear harm on return to Bangladesh due to these circumstances (CB 18 to CB 21 and CB 27 to CB 31).

4. The delegate wrote to the applicant on 9 May 2013 requesting further detailed information (CB 110). The delegate refused the grant of the visa on 25 November 2013 (CB 123 to CB 135). The delegate found the applicant’s claims of persecution, as a whole, not to be credible (CB 127).

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 23 December 2013 (CB 137 to CB 142). He attended a hearing before the Tribunal on 10 June 2014 (CB 149 to CB 151) and on 16 July 2014 (CB 199 to CB 201). The applicant provided further documents to the Tribunal at the hearing, including a “Certificate” provided by the applicant’s brother and various medical documents (CB 152 to CB 194 and CB 202 to CB 226). The applicant was granted further time at the hearing to provide additional evidence, which he provided to the Tribunal on 23 July 2014 ([7] at CB 235). The Tribunal affirmed the delegate’s decision on 31 July 2014 (CB 223 to CB 249).

2. The applicant had travelled to Australia on an Indian passport. He claimed to have obtained this passport fraudulently while living illegally in India ([9] at CB 235). The Tribunal found the applicant’s evidence in relation to the Indian passport to be “plausible and credible”. It therefore gave him the benefit of the doubt and accepted that he was a national of Bangladesh and had no right of protection in India ([10] at CB 236).

3. However, the Tribunal had significant concerns about the applicant’s evidence in relation to past events in Bangladesh which the applicant claimed gave rise to his fear of return in the foreseeable future. The Tribunal found he was not a credible witness ([39] at CB 242).

4. The Tribunal considered eight matters arising from the applicant’s claims and found in relation to all that the applicant’s evidence was significantly inconsistent as between what he said at each of the occasions of the hearing and as compared to his written claims. The Tribunal found the applicant’s explanations for this to be unpersuasive and it rejected the applicant’s factual account as to past events said to give rise to the real risk of harm ([13] at CB 236 to [39] at CB 242).

5. In his submissions the Minister has set out in some detail the Tribunal’s concerns about the applicant’s evidence. In my view the Minister’s submissions are a fair and accurate summary of this part of the Tribunal’s decision record, and for the sake of convenience I adopt them for the purposes of this judgment ([7] – [10] of the Minister’s submissions):

   “[7] The Tribunal’s numerous concerns about the applicant’s evidence led it to find that he was not a “credible witness,” and had not been “truthful in relation to the claimed events in Bangladesh, his reasons for leaving Bangladesh, or his fears about returning” (CB 236 at [13]; CB 241 at [32]). In particular, the Tribunal:

   a. Did not find it credible that the applicant’s mother would not tell him the police had come looking for him for approximately four months, or if the applicant was told the police were looking for him, he would not consider this to be important (CB 236 at [14]);

   b. Found the applicant’s inability to recall ‘with some degree of accuracy’ when the police had come to his family home raised doubts about whether any charges had been laid (CB 237 at [15]);

   c. Did not find it credible that the authorities would lay false charges against the applicant in late 2012 or 2013 in circumstances where the applicant had been out of the country since November 2010 (CB 237 at [16]);

   d. Found the applicant’s evidence in relation to his family’s land being possessed by local Muslims to be ‘so inconsistent that it is not satisfied that the applicant’s family land was taken by Muslims in Bangladesh’ (CB 237-238

   
   

   at [17]-[20]);

   e. Found the applicant’s evidence in relation to why his father was attacked and killed to be ‘so inconsistent that it is not satisfied that the applicant has been truthful in relation to the reasons for his father’s death’ (CB 238 at [21]), and placed ‘little weight’ on the death certificate provided by the applicant (CB 238-239 at [22]);

   f. Found the applicant’s evidence in relation to what protests or complaints were lodged in relation to the possession of the family land to be ‘inconsistent and unpersuasive’ (CB 239 at [23]);

   g. Found the claim that the applicant was forced to go into hiding at his uncle’s home after his father’s death to be inconsistent with his earlier evidence (CB 239 at [24]);

   h. Found the applicant’s evidence in relation to being ‘physically assaulted on many occasions between 2004 and 2010’ to be ‘vague and unpersuasive’ (CB 239 at [25]) and ‘significantly inconsistent’ (CB 239 at 26);

   i. Found the applicant’s evidence about his involvement in the Somonnay Club to be inconsistent and unpersuasive (CB 239-240 at [27]-[28]);

   j. Was not satisfied that the applicant had any interest in politics, or that the club was politically associated (CB 240 at [29]), and found the applicant’s evidence in relation to his involvement with sports in his local area to be ‘so inconsistent and unpersuasive’ that it did not accept there was any ‘political dimension’ to this, or that he was assaulted or threatened as a result of his involvement (CB 240-241 at [30]); and

   k. Found the applicant’s travel history not to be consistent with his claimed fears, and did ‘not consider that the applicant would have voluntarily returned to [his home area] if he had been forced to flee there because of fears for his life’ (CB 241 at [31]).

   [8] The Tribunal accepted that the applicant’s brother had obtained protection in France as a refugee, but:

   a. Was not satisfied that the applicant’s brother’s claims for protection in France were consistent with the applicant’s claims made to the Tribunal (CB 241 at [33]); and

   b. Found the contents of a letter of support from the applicant’s brother to be inconsistent with the applicant’s brother’s statement provided with his application for asylum in France (CB 241-242 at [34]-[35]).

   [9] The Tribunal therefore placed ‘little weight’ on this documentary evidence, and did not consider that it overcame its credibility concerns (CB 240-241 at [33]-[35]).

   [10] The Tribunal did not accept the applicant’s claims, and found there was no real chance or risk of the applicant being harmed as a result of:

   a. Any dispute over his family land (CB 242 at [37]);

   b. His past or future involvement with the sporting club (CB 240-241 at [30]; CB 242 at [38]); or

   c. His political opinion (CB 424 at [39]).

6. In light of this, the Tribunal rejected the applicant’s factual account of events in Bangladesh and found he did not have any political profile in Bangladesh.

7. Despite its concerns about his credibility, the Tribunal accepted that the applicant was a practising Buddhist and that he lived as a full time monk in Bangladesh and India, although he did not live as a monk in Australia ([40] at CB 242). It accepted he was a Bengali speaking Buddhist ([41] at CB 242).

8. The Tribunal considered a large range of independent country information concerning the situation of Buddhists in Bangladesh and the situation of minority groups in that country ([42] at CB 243 to [51] at CB 245). Based on that country information and the evidence before it, the Tribunal found that the chance that the applicant would be harmed because of his Buddhist religion or minority ethnicity was remote ([52] at CB 245).

9. In all, therefore, it found that the applicant did not meet either of the criteria at s.36(2) of the Act for the grant of the visa. It affirmed the delegate’s decision on that basis.

Application before the Court

1. The grounds of the application before the Court are as follows:

   “1. RRT did not look into my case properly.

   2. RRT ignore the real fact is my safety/

   3. I need protection otherwise my life will be at risk.”

2. In addition to this, the applicant sought the following “Interlocutory, interim or procedural orders”:

   “1. Please set aside the decision made by RRT as it did not look into the facts a my case properly. RRT did not make a favorable decesion despite I met all the requirements to grant my protection visa.

   2. My life will be in danger, if I have to return to my home country so, I need protection in Australia to save my life.”

   [Errors in the original.]

Before the Court

1. The applicant appeared before the Court, with the assistance of an interpreter in the Bengali language first on 15 October 2014, and subsequently at a callover before the Registrar on 8 April 2015. The Minister has consistently pressed that the grounds of the application do not raise an arguable case for the relief that the applicant seeks. On 8 April 2015, the Minister again pressed before the Registrar that the application did not raise an arguable case for the relief sought and the matter was set down for a hearing today pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) (a “show cause” hearing).

2. I am satisfied, having regard to orders made on previous occasions, and the time that has been made available to the applicant, that he has had a reasonable opportunity to amend the grounds of his application and that he has not done so.  He has also had a reasonable opportunity to seek any legal advice.

3. Before the Court today the applicant appeared in person and was again assisted by an interpreter in the Bengali language. I understood the applicant to submit that the “papers” that he had submitted to the Minister’s department and the Tribunal, contained the “real facts”.  He also submitted that he had problems in his home country and could not go back, and that his mother had told him not to go back because he would be beaten.  I will return to those matters later.

The Issue

1. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.

2. As I have stated before, if the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]– [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v Immigration Department [1999] FCA 365).

Consideration

1. The orders that the applicant seeks, in essence, take issue with the Tribunal’s factual findings and, in one important respect, ignore the Tribunal’s adverse finding as to his credibility. The applicant’s assertion both in his grounds of the application and orally before the Court today, that his life would be in danger if he returns to his home country does not rise above a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). It does not raise any legally arguable case to set aside the Tribunal decision.

2. The grounds of the application similarly seek merits review. As I said earlier, The Tribunal affirmed the delegate’s decision because it found the applicant’s evidence and claims as to past events of claimed harm to be untruthful. Further, it found that the matters which it did accept, his religion and ethnicity, did not, on the evidence before it, give rise to a real risk of serious or significant harm.

3. The Tribunal’s findings were all reasonably open to it on what was before it. It gave comprehensive and cogent reasons for its conclusions and the antecedent findings which informed them. The assignment of weight to the applicant’s evidence and country information was for the Tribunal to assign (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).

4. As I said to the applicant today, the Court has no power to assess his claims and evidence to fear harm and to substitute its own findings of fact for those of the Tribunal. The applicant’s complaint that the Tribunal did not look into his case properly does not provide any basis for any arguable case because the Tribunal’s disbelief of the applicant in the circumstances presented does not mean that it failed to properly consider his claims. Similarly, with great respect to the applicant’s mother, what the applicant reports his mother told him, again, cannot assist in showing a legal error in what the Tribunal has done.  No arguable case for the relief sought is raised in these submissions.

Conclusion

1. In all, the grounds of the application do not raise an arguable case for the relief sought. It is the case that the FCC Rules provide that at a hearing of an application to show cause (with reference to r.44.12 of the FCC Rules), the applicant is confined to the grounds mentioned in the application to the Court (r.44.13(1) of the FCC Rules). The applicant did not raise anything today that would have made it appropriate to dispense with this rule pursuant to r.1.06 of the FCC Rules.

2. In the circumstances, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 27 April 2016