SZVLC v Minister for Immigration
[2016] FCCA 3371
•28 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVLC v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3371 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether there is an arguable case for the relief sought – no arguable case raised – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 422B, 424A, 425, 476 |
| Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Xie v The Immigration Department [1999] FCA 365 |
| Applicant: | SZVLC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3074 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 28 November 2016 |
| Date of Last Submission: | 28 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2016 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms N Johnson of Mills Oakley |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 5 November 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3074 of 2014
| SZVLC |
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”), made on 5 November 2014, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 10 October 2014, which affirmed the decision of the Minister’s delegate to refuse the grant of a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). The Minister also filed written submissions on 15 November 2016.
Background
The applicant is a citizen of Bangladesh (CB 13). He arrived in Australia on 7 May 2013 as the holder of a “Business Visitor visa” (CB 95). He applied for a protection visa on 30 July 2013, in which he set out his claims to fear harm if he were to return to his home country (CB 1 to CB 26).
The applicant claimed that he left Bangladesh due to “harassment, attack and to avoid death threat” from the Awami League (“AL”) as he had been a supporter of the Bangladesh National Party (“BNP”) and a “leader” of the “Bangladesh Jatiyatabani Olama Dal” (“JOD”), that was associated with the BNP (CB 133). The applicant claimed that he had been “physically attacke[d]” by members of the AL and hospitalised (CB 19). Further, that the police and the “Rapid Action Battalion”, harassed him and would “add [his] name” to criminal cases because of the influence of the AL (CB 19).
He also claimed that he feared that the police would detain him, and that they had refused to receive any reports of attacks on him. He claimed that the AL “blamed” him for action taken by the
Hifazet-e-Islam because of his influence with the organisation associated with the BNP.
The applicant attended an interview with the Minister’s delegate on 16 January 2014, at which he made further claims (CB 98 to CB 99). These were that he attended at a “march” (also described as a “demonstration”) on 6 April 2013, and that this had caused problems for him. He also claimed that a “false case” had been brought against him for the murder of an AL worker. Further, that six other leaders from the JOD had gone into hiding, or had been killed, or imprisoned. He provided a number of documents in support of his claims, including “country information” and a document appearing to confirm his “work” with the JOD (CB 36 to CB 90).
The delegate refused the application for the visa on 20 January 2014. The delegate found that the applicant’s claims to fear harm were “not credible” (CB 99), and “based on the lack of credibility of his claims in the context of independent Country information that he did not fear for his safety in Bangladesh” (CB 104).
The applicant applied for review to the Tribunal on 10 February 2014 (CB 108 to CB 113). He attended a hearing before the Tribunal on 8 October 2014 (CB 119). The Tribunal affirmed the delegate’s decision on 10 October 2014 (CB 132 to CB 139).
The Tribunal found the applicant to be “an unsatisfactory witness”, that his answers to questions that it had put to him were “frequently vague and rambling” and that he “repeatedly failed to address the specific questions asked of him” ([14] at CB 134).
The Tribunal made a number of findings as to the applicant’s specific claims as follows:
1)
The Tribunal did not accept that the applicant had participated to any substantial degree in the 6 April 2013 demonstration
([15] – [16] at CB 135), or that he had a leadership role within the JOD ([17] at CB 135 to [19] at CB 136 to CB 137). It made these findings based on what it said was his inability to provide “anything other than broad and generic information”, and because it was “difficult to obtain detailed information [from him] about exactly what he did” when asked at the hearing before it ([15] and [18] at CB 135).
2)In relation to his claims of physical harm from the AL and the claimed hospitalisation, the Tribunal found that the applicant’s evidence to it at the hearing was “evasive, vague and inconsistent”, and that the applicant had presented “exaggerated or fabricated claims about having been the victim of politically motivated violence” ([27] – [29] at CB 137).
3)The Tribunal considered the applicant’s claim that a “false case” had been made against him in relation to the killing of an AL member at a demonstration on 6 April 2013. It discussed its concerns with the applicant at the hearing ([31] at CB 137 to CB 138). It found that the applicant’s evidence was “not believable” ([32] at CB 138). It did not accept his claims that the Bangladeshi authorities were “looking for him”, or that they would look for him on return to Bangladesh. The Tribunal did so having particular regard to its findings of the lack of the applicant’s political profile or activity ([33] at CB 138).
Further, the Tribunal considered two letters “purportedly” written by colleagues at the BNP that he had submitted at the Tribunal hearing, which were said to corroborate, or support, his claims to have had a leadership role within the JOD. It did not find these documents to be authentic. In relation to the letter dated 7 January 2014, the Tribunal had specific concerns about the lack of any reference in that letter to the applicant’s involvement in the 6 April 2013 demonstration, and the circumstances of how the letter was issued in January 2014 ([21] – [22] at CB 136). It said that it raised these concerns with the applicant at the hearing, but it did not accept the applicant’s explanations because they did not overcome “the apparent peculiarities in the letter which indicate it [was] not genuine” ([23] at CB 136).
In relation to the second letter dated 9 January 2014, the Tribunal found that the “truth and accuracy” of the document was seriously in question due to its “highly inaccurate description” of the claimed incident at the demonstration of an object hitting the applicant on the head, the incident being described as the applicant having been “physically tortured” ([24] at CB 136).
The Tribunal said that it discussed country information with the applicant regarding the “high level of document fraud” in Bangladesh, and that with the issues that it had identified with the letter, the Tribunal may not find either letter to be genuine, or to afford them weight as independent corroboration of his claims. The Tribunal noted that the applicant responded that “just because there were faults in the letters it did not mean that his claims were not true” ([25] at CB 137). In all, the Tribunal concluded that the letters were not authentic and did not serve to overcome the deficiencies in the applicant’s own account of his claims.
The Tribunal also considered a possible religious claim based on the applicant’s claim to have attended and taught at a “madrassa” and to have belonged to the religious wing of the BNP. The Tribunal accepted that he had taught at the “madrassa”, but relied on its earlier findings as to his actual political activities being minimal to non-existent. It found, on this basis, that there was no real risk of serious or significant harm if the applicant were to return to Bangladesh, by reason of his religion ([34] at CB 138).
In all, the Tribunal found that the applicant did not meet either of the criteria at s.36 of Act for the grant of the protection visa. It affirmed the delegate’s decision on that basis.
Application Before the Court
The application to the Court contains four grounds in the following terms:
“1. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral and other documental evidence in relation to my claim to be a refugee.
2. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving me the opportunity to submit my explanations for any adverse information that the tribunal may have. If I would be given the opportunity to explain that could have led to a difference decision by the tribunal.
3. The tribunal biased by the country information and considered my case on average without giving any weight on my claims and didn’t look the matter individually.
4. The tribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was an apprehension of bias in the making of the purported decision.”
[Errors in original.]
Before the Court
It is important to note that since making his application to this Court, which is now over two years ago, the applicant appeared in person before a Registrar of the Court in November 2014 and June 2015. Orders were made by the Registrar granting the applicant leave to file any amended application, any evidence in support by way of affidavit, and written submissions. The applicant has filed no further documents.
On the last occasion before the Registrar of the Court on 24 June 2015, the Minister, bearing in mind what was stated in the grounds of the application, sought, and was granted, the opportunity of a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). In essence, the Minister’s position was that the grounds of the application did not raise an arguable case for the relief that the applicant sought. The matter was set down for hearing today on that basis.
Issue Before the Court
Before the Court today, the applicant appeared in person. He was assisted by an interpreter in the Bengali language. The Minister was represented by a solicitor.
The issue before the Court is whether the grounds of the application raise a legally arguable case for the relief that is sought. When regard is had to the application to the Court, it is not entirely clear what relief the applicant seeks. Nonetheless, as the applicant made clear today, what he really seeks is that the Tribunal decision be returned to it by the Court for reconsideration.
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] and 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; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
Consideration
Before the Court today, the applicant stated that his matter should be returned to the Tribunal for reconsideration because the Tribunal, although it listened to him, based its “entire decision” on whether it believed him or not. That is, whether he was telling the truth or not.
It is difficult to see how this, on its own, constitutes any assertion of legal error. It is, of course, the function of any administrative
decision-maker to make findings of fact. Whether an applicant before the Tribunal is to be believed, or not, is a reasonable consideration by the Tribunal in seeking to establish the facts of the merits of the claim to fear harm. A finding as to an applicant’s credibility has been described as being a part of the Tribunal’s decision making role “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
The applicant’s complaint was also that the Tribunal “somehow” erred because it drew adverse inferences from when he paused in his “speech” before it. The applicant said that is how he “generally” speaks, yet the Tribunal thereby thought that he was not telling the truth.
There are a number of points to be made here. Despite opportunity, and the two years that have been available to the applicant, he has not provided any evidence to the Court of what he says may have otherwise occurred, or possibly occurred, at the Tribunal hearing. Importantly, there is no transcript of the Tribunal hearing before the Court in evidence. In those circumstances, it is not open to the Court to infer what otherwise may have occurred at the Tribunal hearing. It is trite to say that the Court can only proceed on the evidence presented to it. The only evidence before the Court relevant to what occurred at the Tribunal hearing is the Tribunal’s own account, its own report of what occurred, as set out in its decision record.
What the Tribunal’s account clearly reveals is that the Tribunal gave detailed reasons for why it did not believe the applicant. This was not a case simply where an applicant’s “pausing” or “halting” in their speech was the reason for the lack of success before the Tribunal. On the evidence before the Court, the Tribunal’s reasoning shows that the Tribunal made findings of fact that were reasonably open to it on what was before it. As is now well established, findings as to an applicant’s credibility are simply just part of the findings of fact made by the Tribunal.
There can be no discernible legal error simply on the basis that an applicant disagrees with the Tribunal’s findings as to credibility, particularly in circumstances, as in this case, where the Tribunal has provided cogent and detailed reasons which reveal that its findings were reasonably open to it, and were probative of the material before it. Nor, as I tried to explain to the applicant today, can the Court intervene to change these findings of fact even if the Court were to form a different view to the Tribunal.
The applicant also complained about the Tribunal’s approach to the documents that he had provided to it. This appeared, in part, to be directed to ground one of the application, which asserts that the Tribunal failed to consider the applicant’s oral and documentary evidence that he had submitted to it.
In some circumstances, such a failure to consider a claim may indeed lead to jurisdictional error being revealed. However, in the current case, having regard to the Tribunal’s decision record, and indeed the documents in the CB, no such failure occurred. It cannot be said that the ground raises an arguable case that the Tribunal may have failed to consider the claims. There is, of course, a great difference between a failure of a Tribunal to consider a claim, and a reasoned refusal to accept an applicant’s claims.
In light of the evidence before the Court, ground one can only be understood as an assertion that the Tribunal did not “accept” his claims, not that it did not “consider” his claims in the way explained by such authorities as NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088. On the evidence, the applicant’s ground is no more than an expression of grievance that the Tribunal did not believe his claims. As is plain from the evidence before the Court, the Tribunal did consider his oral evidence and the two letters he provided in support.
The Tribunal made various findings of fact to support its conclusion that the applicant’s entire factual account of what he said had occurred in Bangladesh, was not to be accepted. Such findings of fact, including findings on credibility, are for the Tribunal to make within the proper exercise of its jurisdiction. As I said earlier, that is because the Tribunal made findings that were reasonably open to it, and probative of the material before it. No arguable case arises from ground one.
Ground two asserts a denial of procedural fairness. The specific complaint appears to be that the Tribunal did not give the applicant the opportunity to submit his explanations for any adverse information that the Tribunal may have had.
It must be said that this ground, as indeed with the applicant’s entire approach to these proceedings as demonstrated today, misrepresents the Tribunal’s analysis and findings. With respect to the applicant, or whoever assisted him in drafting the grounds of his application, there does not appear to have been an understanding that, in essence, the Tribunal relied on two factors to reject the applicant’s claims. First, the applicant’s own evidence to the Tribunal, and the Tribunal’s subjective view of that evidence. Second, “country information” that was available to the Tribunal.
This is a case to which s.422B of the Act applies, making the matters 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 set out in that Division (Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41; (2009) 176 FCR 53).
The question of what adverse information the Tribunal may have had immediately directs attention to s.424A(1) of the Act. This obliges the Tribunal to put to an applicant for comment or response “information” which it considers “would be the reason, or a part of the reason” for affirming the delegate’s decision. There are, however, a number of clear exceptions to that obligation.
Relevant to this case, the applicant’s oral evidence to the Tribunal, and the written material that he provided to the Tribunal, all fell within the exception contained in s.424A(3)(b) of the Act from any obligation under s.424A(1) of the Act. The “country information” referred to by the Tribunal falls within the exception in s.424A(3)(a) of the Act. In essence, these were the two broad sources of information that the Tribunal relied on in coming to its decision.
To the extent that the applicant’s ground speaks of being given the opportunity to submit explanations for any adverse information, and to the extent that this may be some reference that the Tribunal did not put its concerns about his credibility to him, then the Tribunal’s subjective view of the applicant’s evidence, its appraisal of that evidence, is not “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507).
I should note for the sake of completeness, that in its decision record at [4] (at CB 133), the Tribunal does make reference to the fact that the applicant was interviewed by the delegate, and at [5] (at CB 133) it reports on what he said at the interview. However, on any plain, let alone a fair reading of the decision record, the Tribunal’s references in that regard were to ascertain the scope of the additional claims made by the applicant to the delegate. It therefore cannot be said that the references to what the applicant orally told the delegate is a reason or a part of the reason for affirming the delegate’s decision. The references were to understand and explain the extent of the applicant’s claims, not to reject them.
There is nothing in what the Tribunal records at those parts of its decision record ([4] – [5] at CB 133), that can be said to be in its terms be a “rejection, denial or undermining” of the applicant’s claims to fear harm (SZBYR at [17]). In fact, they are a neutral presentation of those claims. Ultimately, the information that the Tribunal relied on was the applicant’s oral and documentary evidence. But that material was provided to the Tribunal by the applicant for the purposes of the review, and as a I said earlier, “country information” falls within the exception in s.424A(3)(a) of the Act. No arguable case arises in relation to s.424A of the Act.
In relation to s.425 of the Act, which is also a part of Division 4 of Part 7, I note that the applicant was invited to a hearing. There is nothing on the evidence before the Court to suggest that the hearing invitation did not comply with all the relevant statutory and regulatory requirements for such an invitation. There is nothing before the Court to show that the invitation was anything other than a meaningful opportunity for the applicant to make out his case (Minister for Immigration & Multicultural& Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553, Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 and SZBEL v the Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”)). Bearing in mind what the High Court relevantly said in SZBEL, it is clear on the evidence that the issues dispositive of the review were discussed at the hearing.
The applicant has not provided any evidence to contradict the Tribunal’s account of what occurred at the hearing. On the only evidence available, the Tribunal complied with the direction provided by the High Court as to how to discharge its obligations pursuant to s.425 of the Act. In any event, given that the issue dispositive of the review, or determinative of the review, was the disbelief of the applicant’s entire factual account, it is clear that the applicant would have been squarely on notice following the delegate’s decision, that the credibility of his account was at issue (SZBEL at [35] - [37]).
Grounds three and four assert bias, and the apprehension of bias. Such allegations unfortunately are quite common in matters of this type involving applicants who are legally unrepresented. I say unfortunately because while I accept that it is some expression of dissatisfaction, perhaps some attempt by an unrepresented applicant to explain why he was not believed by the Tribunal, what remains is that an allegation of bias is a very serious charge to bring against an administrative decision-maker for the very reason that unlike other allegations of legal error, an allegation of bias strikes at the very integrity of the administrative decision-maker, in this case, the Tribunal member.
The test for bias is now well settled (see Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), Minister for Immigration and Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102). In effect, the assertion is that the Tribunal did not bring an open mind to the proceedings, or had prejudged the proceedings, or was not open to persuasion. Given that bias is an extremely serious charge to make, the law requires that it must be, as the Minister correctly submits, clearly made and distinctly proved (Jia Legeng at [69]).
At best, the applicant’s claim of bias is essentially based on the proposition that the Tribunal did not accept his claims. There is no arguable case that can be said to arise in circumstances where the claim of bias is made simply because the Tribunal did not believe him. In relation to “country information” to which the Tribunal clearly had regard, as the Minister correctly submits, the choice, and the weight, to be assigned to “country information” was within the proper exercise of its jurisdiction (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). There is no arguable case raised in that regard in the circumstances of this case.
The test for the apprehension of bias is that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the proceedings (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100, Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264).
There is nothing to say that any arguable case that may indicate such a charge is available in this case. As mentioned previously, the Tribunal’s reasons, albeit reasons that the applicant did not like, nonetheless were cogent reasons and, on the evidence, probative of the material before it. No arguable case is raised in this regard.
What remains, and was made clear by the applicant’s statements to the Court, is what the applicant really seeks is for the Court to engage in merits review. That is, to substitute its own findings of fact, particularly in relation to his credibility, for those of the Tribunal. As I said to the applicant, the law does not permit the Court to do that (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
No legally arguable case is raised by any of the grounds of the application to the Court. It is the case that in matters heard pursuant to r.44.12 of the FCC Rules, r.44.13 states that at such a hearing the applicant is confined to the relief sought, and the grounds mentioned in the application.
For the reasons given above, the grounds do not raise any arguable case. I did consider whether I should dispense with that rule pursuant to r.1.06 of the FCC Rules, in the interests of justice. However, there is nothing in the material before the Court that would indicate that such a course should be adopted by the Court today. In all, therefore, it is appropriate that the application to the Court be dismissed. I will make the appropriate order.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 11 January 2017