SZVIE v Minister for Immigration and Anor (No.2)
[2017] FCCA 1139
•29 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVIE v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 1139 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 424A, 425 |
| AAM15 v Minister for Immigration & Anor [2015] FCA 804 SZVIE v Minister for Immigration & Anor [2015] FCCA 1327 |
| Applicant: | SZVIE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2926 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms B Griffin of Australian Government Solicitor |
ORDERS
The amended application filed on 8 May 2015 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2926 of 2014
| SZVIE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 26 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts relating to this matter are conveniently set out in written submissions prepared for the purposes of earlier proceedings in this Court and filed on 12 May 2015.
The applicant, a citizen of Bangladesh, arrived in Australia on 20 November 2012 on a Short Stay Business visa which ceased on 20 February 2013. He lodged an application for the visa on 30 January 2013[1].
[1] Relevant Documents (RD) 1 - 26
The applicant claimed he joined the student wing (Chattra Dal) of the Bangladesh Nationalist Party (BNP) in 2008. He was attacked by a supporter of the student wing of the Awami League (AL) in October 2012, following which he claimed he was hospitalised. The police refused to accept the applicant’s complaint but went to his house leaving a message with his family that the applicant was wanted for questioning. The applicant feared being killed or subjected to harm by AL supporters because of his membership of the BNP[2].
[2] RD 18–20
On 11 July 2013, the delegate refused the application. The delegate did not accept the applicant’s claims noting, among other things, the delay in his applying for the visa and the false information that the applicant initially provided to the Minister’s Department in order to enter Australia[3].
[3] RD 31-43
On 13 August 2013, the applicant applied for review of the delegate’s decision[4]. On 9 July 2014, the applicant attended a hearing before the Tribunal[5]. Following the hearing, the applicant provided a statement and a number of other documents, some of which were not translated[6].
[4] RD 44-49
[5] RD 61
[6] RD 83-98
The Tribunal decision
The Tribunal affirmed the decision under review, finding that the applicant’s claims regarding his affiliation with the BNP or Chattra Dal lacked credibility. It found the applicant was not a joint secretary of the Chattra Dal at his college, as claimed, and that he was not a member of the BNP. The Tribunal took into account the applicant’s lack of knowledge about the policies, elements and history of the BNP and his lack of clarity regarding his motivation and reasons for joining. The Tribunal also noted the applicant had no documentation to corroborate his claimed affiliation with the BNP or Chattra Dal which it considered further supported its finding[7].
[7] [63]-[66]
The Tribunal also noted the applicant’s ability to obtain a new digital Bangladeshi passport and visa to Australia and found these facts, together with his ability to depart Bangladesh on many previous occasions, showed he was of no adverse interest to the authorities there[8].
[8] [69]
In conclusion, the Tribunal found there was no real chance the applicant would face persecution for reason of political opinion or any other reason in Bangladesh nor was he of adverse interest to the AL or to the police[9]. As the Tribunal found he was not an active member of the BNP or Chattra Dal, the Tribunal did not accept he had been attacked for this reason as claimed or that he had been forced to hide prior to his departure from Bangladesh[10].
[9] [67]-[68] and [73]
[10] [70]
In light of these findings, the Tribunal did not accept the post-hearing evidence submitted by the applicant to be reliable or trustworthy[11].
[11] [72]
As the Tribunal found the applicant’s claims lacked credibility, it concluded the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act). For similar reasons, the Tribunal was not satisfied there was a real risk of significant harm to the applicant and, accordingly, that he did not satisfy the criterion in s.36(2)(aa) of the Migration Act[12].
[12] [78]
The present proceedings
These proceedings began with a show cause application filed on 22 October 2014. The applicant now relies upon an amended application filed on 8 May 2015. That application was dealt with, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) by another judge of this Court on 15 May 2015[13]. Those orders were set aside by consent by Pagone J in the Federal Court on 11 August 2015. A notation to those orders states that the Minister accepts that this Court erred in dismissing the proceedings in the manner and circumstances identified in AAM15 v Minister for Immigration & Anor[14] at [11] per Perram J.
[13] SZVIE v Minister for Immigration & Anor [2015] FCCA 1327
[14] [2015] FCA 804
In essence, it appears that the problem with this Court’s earlier judgment was one of an insufficiency of reasons. Following remittal, the case was allocated to a different judge of this Court. Recently it was re-allocated to me.
There are four grounds in the amended application:
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 October 2012, he was attacked ACL (Awami Chattra Dal) supported students in the campus and suffered injury requiring treatment at the 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 Munshiganj 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 s.424 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 competition. 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 56 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 DEFAT 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 ..
(errors in original)
The only evidence I have before me is the book of relevant documents filed on 20 November 2014.
Procedural orders made in this Court gave the applicant the opportunity to file and serve affidavit evidence, including a transcript of the Tribunal hearing, but he has not taken up that opportunity.
I invited oral submissions from the applicant today. In a disarmingly honest and simple fashion he told me that he had no problems with the Tribunal decision. He did have problems with the decision of the Minister’s delegate which preceded it. The applicant is concerned that he was not dealt with fairly by the delegate. As I explained to the applicant, however, this Court has no jurisdiction to review the delegate’s decision. Further, the review before the Tribunal would have, in a legal sense, cured any defects in the delegate’s decision.
In terms of the amended application, the first ground asserts bias and a failure – perhaps a constructive failure – to assess the applicant’s claims for protection. The particulars refer to the applicant’s claims of political involvement put to the Tribunal. The particulars assert that the Tribunal overlooked or misunderstood the applicant’s evidence. This assertion, however, cannot be sustained in the light of the Tribunal’s reasoning which, on its face, dealt with all of the applicant’s claims. There is nothing on the face of the available material to suggest any bias or pre-judgement on the part of the Tribunal.
The Tribunal set out and explained its understanding of each of the claims made by the applicant to it concerning his political affiliation and his fear of the Awami League[15]. The Tribunal records[16] that it questioned the applicant about his claims and made findings on them. The Tribunal also records[17] that it took into account the applicant’s evidence submitted after the Tribunal hearing. The Tribunal, nevertheless, concluded that it did not accept the applicant’s claims as credible. There was nothing to support the proposition that the Tribunal overlooked or misunderstood either the applicant’s claims or his evidence. The applicant is correct in that the Tribunal decision turned on its adverse credibility findings. Those findings were, however, open to the Tribunal on the material before it.
[15] see [35]-[48]
[16] at [58]-[65] of its reasons
[17] at [51]-[55]
The second ground takes issue with the questions framed by the Tribunal at the hearing. The particulars assert that the Tribunal failed to apply proper, genuine and realistic considerations. In my view, the Tribunal met its obligation under s.425 of the Migration Act to provide the applicant with a real hearing opportunity. It does not appear that disclosure obligations were engaged pursuant to s.424A of the Migration Act. On my reading of the Tribunal’s reasons, there was nothing unfair about the questions put to the applicant.
The third ground asserts that the Tribunal did not apply the correct test for persecution under the Migration Act. The particulars assert that the Tribunal’s opinion was based on limited information and that the Tribunal ignored other information. In that regard, I agree with the Minister’s submissions prepared for the initial hearing before this Court.
Ground 3 asserts that the Tribunal did not apply the test for persecution in accordance with the Migration Act. On the contrary, the Tribunal’s reasons disclose it was aware of the relevant criteria to be met[18]. The Tribunal clearly considered whether there was a real chance the applicant would face persecution for a Convention reason at [72], [73] and [77] of its reasons. The Tribunal’s reasons in these paragraphs reveal that it did not misapply the test under s.36(2)(a) of the Migration Act, to the facts as found.
[18] [5]
The Tribunal’s clear statement of the correct relevant statutory criteria, together with its sound findings of fact based on adverse credibility findings mean that this ground does not raise any matter capable of amounting to jurisdictional error.
Insofar as this ground asserts that the Tribunal relied wholly on the DFAT report and ignored all other independent information, this is clearly incorrect[19].
[19] see RD 112-125
The final ground asserts error in the Tribunal’s complementary protection assessment. The particulars again assert limited information and appear to take issue with the merits of the Tribunal’s assessment. As is noted in the Minister’s written submissions, the Tribunal specifically addressed the applicant’s claims against the complementary protection criteria at [6] and [78].
The Tribunal stated the correct test to be applied and, at [78], considered the facts earlier found in applying the test. There is no error by the Tribunal in relying upon its earlier factual findings in the course of considering the complementary protection criteria.
I am not persuaded that the Tribunal fell into any of the asserted errors in the amended application. I conclude that the applicant has failed to demonstrate any jurisdictional error by the Tribunal.
Accordingly, the decision is a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $2,800. That is a modest claim and the applicant was not in a position to make any submissions in opposition to it.
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 $2,800.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 31 May 2017
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