SZVIE v Minister for Immigration
[2015] FCCA 1327
•15 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVIE v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1327 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause hearing – application for an adjournment – application dismissed. |
| Legislation: Migration Act 1958 ss.36(2)(a), 36(2)(aa), 424, 425, 476 |
| Applicant: | SZVIE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2926 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 15 May 2015 |
| Date of Last Submission: | 15 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2015 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondent: | Ms Griffen Australian Government Solicitor |
ORDERS
The amended application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs fixed in the sum of $3416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2926 of 2014
| SZVIE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is a matter within the Court’s jurisdiction under s.476 of the Migration Act, being an application for a constitutional writ in respect of a decision of the Tribunal on 26 September 2014 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. This matter was fixed for a show cause hearing for today, and the application identifies the following grounds:
1. The Refugee Review Tribunal made a jurisdictional error when it failed to assess the applicant's claim for the protection , became biased due to misunderstood or overlooked the oral and written evidence -this affected the matters considered and not considered by the Tribunal .
Particulars : During the hearing in the Tribunal ,the applicant ,as a truthfull witness , gave all the information about the development of his political affialation with the BNP party . He was active member and Joint Secretary of Jatiotabadi Chttra Dal (a Student Wing of BNP Party of Bangladesh) of the College Committee. He opposed Awami Chattra League (a Student wing of Awami League Party of Bangladesh) unethical activities in the college campus. On 1st Ocober 2012, he was attacked ACL (Awami Chattra Dal) supported students in the campus and suffered injury requiring treatment at clinic . His family members went to file FIR to the Police Station but they refused to register the complaint. The Police refused to register the Complain against the ACL students because there was pressure from the Awamai League Party Leader of the [M] area not to register any FIR against supporter of Awami League Party. While he was in the Dhaka Hospital for treatment the police came to the applicant's house and asked from the family members about his whereabout and gave order to attend the police station immediately. Because of the fear of arrest the applicant fled from there. His parents organised all of the things related with Australian Visa . The applicant claims that he has already witnessed the police treatment with the BNP supporters who is always at risk of life when they are caught or arrested by the police . The applicant claims that the Tribunal overlooked and misunderstood the evidence and came on conclusion that the applicant's evidence is inconsistent assertion on the credibility testimony.
2. The Tribunal made a jurisdictional error when it framed or asked the questions from the applicant to destroy the credibility of witness . The applicant claims the way the Tribunal raised and asked the questions with regards to BNP part policy was not allowed under the s424 of the Migration Act. The applicant was denied procedural fairness when the Tribunal did not act in a judicial manner .
Particular.
The applicant presented his case in the Tribunal without any legal knowledge background . The way the hearing was conducted was totally unknown to the applicant The applicant clearly said to the Delegate and the Tribunal that he was subjected to physical harm and mistreatment . He has genuine and realistic fear for life and because of that, at any cost he wanted to leave the country. There was not any option left for him to escape from there. He applied for 456 Visa to come to Australia to participate in a sporting competiton. Later on applied for the protection visa. The delay was caused because he was not aware of procedure to lodge the protection visa .The applicant was always truthfull from begining to end of interview in explaining the circumstances in which 456 Visa was granted and made application for the protection visa . The applicant claims that the Tribunal failed to apply proper, genuine and realistic considerations.
3. The applicant claims that the RRT made a jurisdictional error when it did not Apply the test for persecution according to the rule of the Migration Act.
Particulars:
The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant. The Tribunal ignored all other independent information and came on the conclusion .In making decision , the Tribunal relied fully on the DEFAT Report about the Awami League Party's attrocities against the BNP party workers which did not include recent deaths of BNP party workers . The applicant claims that it contradicted and undermined the DEF AT Report used for making the applicant's application for protection visa. The Tribunal failed to assess the applicant's fear of harm and misapplied the law – this affected the Tribunal's application to law.
4 The Tribunal made a jurisdictional error when it did not consider applicant's case Under the complementary Protection Visa Clauses.
Particulars:
The applicant claims he would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return Bangladesh. The RRT ignored the relevant consideration.. The Tribunal decision was based on limited information as it stated earlier. It affected the genuineness and grounds of fear of life in Bangladesh. The applicant claims that if he is compelled to go back to Bangladesh he will be arrested and tortured by the police and Awami League Party workers ..
There is no substance in relation to ground 1 of the amended application, and it is clear that the Tribunal properly assessed the applicant’s claims at paras.35-48 of the Tribunal’s reasons and questioned the applicant about each of those claims at paras.58-65. The Tribunal had regard to the applicant’s evidence submitted post the hearing at paras.51-55 but did not accept the applicant as a credible and reliable witness at para.72. It cannot be said that the Tribunal overlooked or misunderstood the applicant’s claims or evidence, nor is open to contend that the Tribunal was biased because it makes adverse findings of credit.
A reasonable person would not believe that the Tribunal might not bring an independent and impartial mind to the determination of the matter on the merits because it makes adverse findings of credit. Adverse findings of credit in relation to the applicant on the present case were clearly open on the material and for the reasons explained by the Tribunal. There’s no substance in relation to ground 1 and it fails to disclose any arguable jurisdictional error. Ground 2 also seeks to agitate the adverse findings of credit, and in that respect fails to disclose any arguable jurisdictional error.
It was part of the Tribunal’s duty to test the applicant’s evidence, and to put the dispositive issues and doing so does not give rise to any breach of s.425. There is no substance in the allegation of a breach of s.424 of the Act. Ground 2 fails to disclose any arguable jurisdictional error. The Tribunal carefully set out the relevant law and made adverse findings in relation to whether the applicant faced a real chance of persecution for a convention reason at paras.72, 73 and 77, and made adverse findings that were open under s.36(2)(a) of the Migration Act.
There is no substance in the alleged jurisdictional error in ground 3. In relation to complementary protection, the Tribunal again properly identified the relevant law at para.6 and at para.78, and there is no substance in the assertion that there was any jurisdictional error in that regard. This is a matter in which the applicant applied for protection on 30 January 2013, which the delegate refused on 11 July 2013. The applicant appeared before the Tribunal to give evidence on 9 July 2014.
The Tribunal carefully set out the application for the protection visa and the information provided on the department’s interview. The Tribunal carefully summarised the evidence given at the Tribunal hearing, and relevantly identified in para.47 that the applicant had provided false information to secure his visa to Australia and that he had admitted providing fraudulent documents and alleged he was compelled to do so. The Tribunal carefully identified the post-hearing submission and set out the country information and found the applicant to be a citizen of Bangladesh and assessed the claims against that country. Relevantly, the Tribunal made the following adverse findings:
61. …Although the applicant was able to provide some superficial evidence relating to his attraction and motivation to become a claimed BNP activist, the Tribunal finds that his motivation and reasons for being attracted to the BNP 'vas far from persuasive.
62. …Although the Tribunal considered the applicant's evidence and his claims to have faced trauma, it finds that his knowledge of the BNP manifesto does not accord with that of an office holder in the party or an active member as claimed by him affiliated with the party since 2008. The Tribunal finds that the applicant was not joint secretary of the Chattra Dal at his college as claimed and that he is not a member of the BNP.
63. …The Tribunal considered the applicant's evidence and finds his failure to articulate policies or elements of the BNP platform that were important to him supports its finding that he was neither a member or office holder of the Chattra Dal of the BNP.
64. …The Tribunal considered the applicant's evidence in relation to parliamentary elections since he claimed to become affiliated with the BNP, and his contradictory evidence as to who was his local candidate for the BNP in the 2008 election, when those elections took place and who ran locally for which party, and finds that his knowledge does not accord with that of a BNP activist or Chattra Dal office holder.
65. …The applicant held the position of joint secretary for six to eight weeks before he left Bangladesh but could not perform his duties fully. In the Tribunals view the applicants inability to define the number of persons on the executive, the president who appointed him and given the factors noted above finds that the applicant was not a BNP activist or Chattra Dal office holder as claimed.
66. The Tribunal notes that the applicant had no documentation to corroborate his claimed affiliation with the BNP or Chattra Dal and noted that his evidence was that it does exist but he is unable to retrieve them because BNP leaders are on the run or in hiding. Many phones are not answered. The Tribunal considered the applicants explanations but in the context of its other credibility findings in relation to the applicants claimed BNP affiliation that his inability to provide corroborating documentary evidence further supports its finding that he was not a BNP activist or Chattra Dal office holder as claimed or that he is a supporter or member of the BNP or would be involved politically on his return in any capacity. It further does not accept that the applicant has or will continue to speak out and engage in social welfare activities. As this is the central element of the applicants claims, the Tribunal finds does not accept that the applicant faces a real chance of persecution in Bangladesh for reasons of political opinion.
67. The Tribunal finds that in the particular circumstances of this applicant that there is no real chance that the applicant would face persecution for reasons of political opinion in Bangladesh.
68. The Tribunal does not accept that the applicant is of adverse interest to the Awami League for any reason.
69. …The Tribunal considered the applicants evidence and finds that in light of the applicant's ability to obtain a new digital Bangladeshi passport, a visa to Australia, and his ability to depart the country not only on the last occasion but having entered and/or exited Bangladesh five times without difficulty that he is not of adverse interest to the Bangladeshi authorities.
70. …The Tribunal considered the applicants evidence but finds that given that he is not an active member of the BNP or the Chattra Dal or an office holder of the Chattra Dal that he was not attacked as claimed, and that he was not in hiding in fear for his life priorto his departure from Bangladesh.
71. The Tribunal further notes that the applicant delayed lodging his protection visa until 30 January 2013. He explained he did not know anyone here and was unaware of the protection visa application process. Although it considered the applicants explanations for his delay in lodging his protection visa application but finds that his delay is not consistent with a subjective fear of persecution.
72. Given that the Tribunal does not accept the applicant's claimed affiliation with the BNP or welfare activities it does not accept that he was attacked by the Awami League in Bangladesh or that he faces physical harm, including having his limbs chopped off or that they may set fire to his house and if he inherits property or wealth they may snatch it away from him or that he would face physical and mental harm and suffering. The Tribunal also considered the applicant's claims that he would speak out when he sees people facing harm and that this would put him at risk but does not accept these claims as credible. It finds that there is no real chance of serious harm or that there are substantial grounds for believing that there is a real risk he will face significant harm in Bangladesh for this reason. The Tribunal does not accept the post-hearing evidence submitted by the applicant to be reliable or trustworthy and finds it not to be credible.
73. The Tribunal on the evidence finds that there is no real chance that the applicant would face serious harm from any government authority for reasons of political opinion or any other reason or that he is of adverse interest to the authorities in Bangladesh. The Tribunal does not accept that the applicant is of adverse interest to the police, security or other officials, or persons affiliated with the Awami League in Bangladesh.
74. The Tribunal finds that the applicant never suffered serious harm in Bangladesh.
75. The Tribunal does not accept that the applicant was of interest or found by the Awami League in Bangladesh.
76. The Tribunal finds that the applicant is not a person in respect of whom Australia owesprotection obligations.
77. The Tribunal does not accept that there is a real chance that the applicant given his non-existent political profile has or would face harassment and or serious harm at the hands of the Awami League or the authorities in Bangladesh or that he would be of adverse interest to any potential agents of harm for a Convention reason in Bangladesh. It has also considered whether there is a real chance that the applicant would face persecution for a Convention reason in Bangladesh for reasons of the general security situation in that country, but finds. that there no real chance he would face persecution for a Convention reason as a result of the general security situation in Bangladesh.
78. The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal has had regard to the evidence and claims put forward by the applicant. Given that the applicant is not credible in relation to his claims regarding interest in him for reasons of his claimed political affiliation, nor the claims relating to harm faced by him for this reason, or for reasons of welfare activities, it finds that there are not substantial grounds for believing that there is a real risk he would face significant harm in the Bangladesh under Australia's protection obligations under s.36(2)(aa). The Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will be arbitrarily deprived of his life, or the death penalty will be carried out on him, or that he will be subjected to torture or to cruel or inhuman treatment or to degrading treatment or punishment in Bangladesh for reasons of the general security situation in Bangladesh. On the evidence before it the Tribunal does not accept that there is a real risk the applicant will suffer significant harm in Bangladesh. The Tribunal is not satisfied on the evidence, that a real risk of significant harm exists for the applicant. The Tribunal does not accept that the applicant is a person in respect of whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.
I am clearly satisfied the application fails to disclose any arguable jurisdictional error and that the matter is one in which it is appropriate to dismiss the amended application under r.44.12.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 20 May 2015
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