SZVJN v Minister for Immigration

[2017] FCCA 3020

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVJN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3020

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 91R, 422B, 424A, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZVJN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2987 of 2014

Judgment of: Judge Cameron

Hearing date: 26 October 2017

Date of Last Submission: 26 October 2017

Delivered at: Sydney

Delivered on: 26 October 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C. Hillary of DLA Piper

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2987 of 2014

SZVJN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh who arrived in Australia on 27 July 2010 holding a student visa. On 25 July 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Bangladesh because of his political opinion. On 23 December 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  As summarised by the Tribunal, the applicant following claimed that his father held a senior role in the Awami League (“AL”) and that the applicant himself had been involved with the party and attended regular activities.  He claimed that in 2009, he was involved in a scuffle with a supporter of the Bangladesh National Party (“BNP”)/Jamaat-e-Islami (“JEI”) after he criticised their policies.

2. In a statement dated 17 July 2013 the applicant also claimed that:

   a)he was making arrangements to leave Australia following unsuccessful attempts to challenge the cancellation of his student visa when he received a call from his parents who warned him not to return to Bangladesh. His parents told him that a group of BNP supporters whom he had encountered in 2009 had demanded that his family hand him over to them; and

   b)he feared harm from the supporters of the BNP and members associated with JEI whom he encountered in 2009 as they ostensibly blame him for harming the BNP leader at the rally and want revenge for the incident, although they were really motivated by political differences.

3. In support of his application the applicant provided the following documents;

   a)a purported police statement dated 11 September 2013, entitled “General Diary” and ostensibly made by the applicant’s father;

   b)a letter entitled “General diary” which ostensibly contained a statement from his father to the police; and

   c)a further purported statement to police dated 21 August 2014, entitled “A General Diary” ostensibly written by his father.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.

2. The Tribunal rejected the applicant’s claims on the basis of comprehensive adverse credibility findings. The Tribunal did not accept that any of the events that the applicant described in his protection visa application had taken place and found that the applicant had fabricated the entirety of his claims.  The Tribunal’s findings and reasons were briefly summarised by the Minister in his written submissions in the following terms which I adopt:

   9. The RRT considered that the applicant’s evidence in relation to the rally was implausible, that the applicant had never experienced any harm when he was politically active in 2008 and that he failed to mention that he had been attending [Awami League] meetings monthly in his statement and application.  It further noted that none of the country reports supported that someone of the applicant’s profile or in his circumstances would be targeted.

   10.The RRT also held that there were several inconsistencies in the applicant’s evidence [noting that the applicant’s claims had changed substantially from his written application to his subsequent dealings with the Department and the Tribunal and that the police complaints and letter from the applicant’s father to the police had been fabricated to assist the applicant with his protection visa application.  The RRT also held that the applicant’s immigration history and significant delay in applying for the protection visa suggested that he had not been truthful in his claims.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal did not believe my refugee claims are genuine based on the Tribunal’s assumption and failed to consider my application in accordance with s91R of the Migration Act 1958.

   2.The Tribunal made its decision few days after the hearing without giving me a chance to address its concerns in writing; as such, The Tribunal erred in applying s424A of the Migration Act, 1958.

   3.The Tribunal placed significant weight on my immigration history and reluctant to accept my claims to be truthful and plausible; I am convinced the Tribunal made a jurisdictional error by failing to act in a way that is fair and just, which subsequently failed to abide by the subsection 422B(3) of the Migration Act.

2. The applicant also presented additional arguments at the hearing of this application.

Ground 1

1. The first ground of the application is in two parts.  The first, concerning the Tribunal’s disbelief of the applicant’s claims, invited the Court to review the Tribunal’s conclusions on the facts which it had had before it.   The Court cannot do this. 

2. The second part referred to s.91R of the Act as it stood at the time of the Tribunal’s review. At that time s.91R relevantly provided:

   91R Persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b)the persecution involves serious harm to the person; and

   (c)the persecution involves systematic and discriminatory conduct.

   (2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   …

3. That version of s.91R only had work to do if an applicant’s material allegations were accepted by the relevant decision-maker. In this case the Tribunal did not believe the applicant, and so s.91R had no work to do.

Ground 2

1. Contrary to the contention advanced by the second ground of the application, s.424A of the Act also had no operation in this case. The applicant did not demonstrate, nor is it apparent, that any material before the Tribunal engaged s.424A(1). Further, the applicant did not identify any dispositive matters which the Tribunal should have but failed to identify to him pursuant to s.425 of the Act. As the Tribunal’s decision was based on an uncomplicated analysis of the various and varying accounts advanced by the applicant, it is not apparent that any particular obligation of the sort alleged arose in this case.

Ground 3

1. As to the third allegation, the Tribunal was entitled to rely on whatever evidence it considered relevant. Further, its exposition and analysis of the evidence before it demonstrates a careful and logical approach to the review. Its consideration did not fail to be fair and just, noting in that regard that s.422B(3) of the Act does not provide applicants before the Tribunal or its successors with rights of a substantive nature.

Ground 4

1. In the submissions made by the applicant at the hearing of this application he again advanced reasons why, he said, he was entitled to have been granted a protection visa.  That is to say, the applicant sought to re-agitate the matters which he had advanced before the Tribunal and in substance sought from the Court a decision on those matters different from the one reached by the Tribunal.  As noted earlier, the Court’s jurisdiction in this matter is limited to considering whether the Tribunal was guilty of jurisdictional error, not whether it reached a conclusion on the facts with which the Court might disagree.  Consequently, the submissions made by the applicant at the hearing of this application did not identify a basis upon which the Tribunal’s decision might be set aside. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed. 

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

Associate: 

Date:  20 December 2017