SZVTJ v Minister for Immigration
[2017] FCCA 2912
•2 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVTJ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2912 |
| Catchwords: MIGRATION – Application for review of the former Refugee Review Tribunal decision – show cause hearing – whether there are reasonable prospects of success – no reasonable prospects of success – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 424AA, 476 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13 |
| Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 |
| Applicant: | SZVTJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3371 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 November 2017 |
| Date of Last Submission: | 2 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr A Day of DLA Piper |
ORDERS
The application made on 4 December 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 $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3371 of 2014
| SZVTJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 4 December 2014 seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 14 November 2014 which affirmed a decision of the Minister’s delegate (“the delegate”) to refuse 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”).
Background
The applicant is a citizen of Bangladesh and is of Hindu religion (CB 15). He applied for the protection visa on 3 October 2013 and was assisted by a registered migration agent who was also a lawyer (CB 1 to CB 51). On 24 February 2014, the applicant’s representative sent written submissions and further documents to the Minister’s department which included a Statutory Declaration of the applicant’s also dated 24 February 2014 (CB 52 to CB 122).
The applicant claimed to fear harm on the basis of his Hindu religion, as a follower of the International Society for Krishna Consciousness (ISKCON) otherwise known as the “Hare Krishna movement”, and for reason of an imputed political opinion. The applicant claimed that his home town of Feni was a “stronghold of the BNP” (Bangladesh National Party) (CB 20), and that the “majority of people” in his home area were Muslim and did not “like” that his family practiced their religion openly ([2] at CB 118). He claimed that “Bangladesh [was] heading towards Islamic Fundamentalism” with extremist groups such as the Taliban establishing “influence and network[s]” in Bangladesh (CB 20).
The applicant claimed that as part of a Hindu minority, he and his family were threatened by the Muslim majority, to stop practising their religion, and “[s]tarting in 2000” the applicant and his family were “targeted by an Islamist group in [their] village area” ([1] – [2] at CB 118).
In June 2012, the applicant obtained a “[w]ork and [h]oliday [v]isa” for travel to Australia and arrived in Australia on 11 October 2012 ([10] at CB 120). The applicant claimed that “[a]fter [his] arrival [in Australia] the extremist Islamist group Jamat-Shibir started attacks all over Bangladesh against members of the Hindu community” ([10] at CB 120). The applicant claimed that his village was attacked on 15 July 2013, which included the applicant’s home ([11] at CB 120 to CB 121).
The applicant claimed to have returned to Bangladesh on 25 July 2013 to see his newborn daughter, but “was too scared to stay for a long time as the situation was unfavourable” ([12] at CB 121). The applicant returned to Australia on 26 August 2013, but his family remain in Bangladesh and “face problems” ([13] at CB 121).
The applicant claimed that attacks on Hindus by Islamist groups had been “increasing and spreading all over the country” ([14] at CB 121), and the government was unable to provide state protection because “the Islamic extremists have influence among the authorities” (CB 20). The applicant claimed that on return to Bangladesh he would be targeted because of his Hindu religion and as a follower of the “Hare Rama Hare Krishna mission” ([14] – [15] at CB 121).
The delegate refused the application for the visa on 12 March 2014 (CB 123 to CB 139). The applicant applied for review to the Tribunal on 21 March 2014 (CB 162 to CB 164). The applicant was invited to, and attended, a hearing before the Tribunal on 16 September 2014 (CB 174 to CB 178 and CB 189 to CB 192). The applicant’s representative sent further documents to the Tribunal on 30 September 2014 (CB 211 to CB 225). The Tribunal affirmed the delegate’s decision on 14 November 2014 (CB 226 to CB 246).
The Minister’s written submissions provide a summary of the Tribunal’s analysis, reasoning and its findings. I have considered what is set out at [12] – [16] of the Minister’s written submissions and in my view, given what it is in evidence before the Court, it is a fair summary. For convenience, I adopt it for the purposes of this judgment. The relevant paragraphs are as follows:
“[12] The RRT accepted that the applicant was a member of the Hindu minority ([21]). The RRT accepted on the basis of country information submitted on behalf of the applicant and available elsewhere that violence occurred against Hindus and Hindu property in February 2013 when the country's International Crimes Tribunal failed to impose the death sentence on
Jamaat-i-Islami leader Abdul Quader Molla following his conviction for war crimes ([22]). The RRT accepted that other instances of attacks on Hindus had also occurred in Bangladesh ([23]).
[13] However, in considering the applicant's individual circumstances, the RRT was not satisfied that the applicant ever suffered harm in Bangladesh in the past because of his Hindu religion and did not accept that the applicant was a member of ISKCON or that he had otherwise drawn attention to himself by any involvement with that organisation. The RRT did not accept that the applicant's family relocated to Feni from their home in Motobi in 2000 because of pressure from fundamentalist Muslim neighbours, that the house in Motobi was attacked in 2013 by fundamentalists, or that the family was being subjected to harm by Islamic fundamentalists in Feni ([25]). The RRT concluded that although there had been violence against Bangladesh's Hindu community from Jamaat-i-Islami and other Islamic fundamentalist groups, it was not satisfied that this constituted more than a remote chance of harm for the applicant ([26]).
[14] In coming to the above findings regarding the applicant's personal circumstances, the RRT addressed the relevant documentary evidence as follows:
14.1 The RRT considered the news report submitted by the applicant in support of his claim that his village and home were attacked on 15 July 2013 ([24]). The RRT pointed to concerns with this document. The RRT found it to be anomalous that the report was almost exclusively focussed on the applicant and did not mention his parents to whom the house belonged. The RRT considered that the report had the appearance of having been written to support the applicant's claims. The RRT also had regard to country information regarding the ready availability of false or fraudulent documents in Bangladesh. The RRT was not satisfied that any weight could be placed on the report.
14.2 The RRT considered the photographs submitted by the applicant which were said to show the destruction of his house in Motobi. The RRT considered that the photographs depicted no more than an area under some trees which was possibly blackened, and showed two undamaged buildings which the RRT considered would not have been left untouched if the house and temple had been destroyed. The RRT placed no weight on the photographs ([24]).
14.3 The RRT considered the letter from the Temple President of ISKCON submitted by the applicant which stated that the applicant's family was at risk, but found that there was nothing in the evidence submitted by the applicant to indicate that such a risk had ever manifested. In addition the RRT considered that the letter had the appearance of having been cut and pasted onto letterheard, such that no weight could be placed on this letter as evidence that the applicant was ever a member of ISKCON. The RRT had regard to the subsequent letter from the General Secretary of ISKCON but was not satisfied that this resolved its concerns about the authenticity of the first letter ([24]).
14.4 The RRT expressed concerns regarding the ISKCON membership card submitted by the applicant. The RRT noted that it was dated 24 August 2013, three years after the applicant claimed to have joined. The RRT rejected the applicant's claim that this was because the organisation observed new members for three years before conferring life membership, on the basis of information on ISKCON websites that life membership is simply purchased with no waiting period ([24]).
14.5 The RRT considered the photographs said to depict the applicant's ISKCON involvement in Sydney but placed no weight on these as it was not possible to make out any features of the person in the photographs ([24]).
[15] The RRT accepted that, as a member of the Hindu minority, the applicant may have been generally seen as holding a political opinion which was in favour of the Awami League. However, the RRT was not satisfied that the applicant had ever drawn attention to himself as a political activist or distinguished himself in the expression of his political opinion. Consequently, the RRT was not satisfied that the applicant would be targeted or harmed for his political opinion ([27]).
[16] The RRT was accordingly not satisfied that the applicant was a person to whom protection obligations were owed
([28]-[33]).”
[Footnotes omitted.]
Before the Court
The applicant first appeared before a Registrar of the Court on 22 January 2015 and various orders were made, by consent, including that the applicant be given the opportunity to file any affidavit annexing a transcript of the hearing before the Tribunal. The applicant filed no such further affidavit. The only affidavit filed was that which accompanied the application to the Court filed on 4 December 2014, which simply annexed a copy of the Tribunal’s decision record. The applicant was also given the opportunity to file an amended application, however he has not done so.
On 5 November 2015, the applicant again appeared before a Registrar of the Court and various orders were made, including that the matter be set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), and the opportunity for the parties to file written submissions before the hearing. The Minister filed written submissions on 26 October 2017. The applicant filed no written submissions.
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.
If the Court cannot be satisfied that an arguable case is raised against the first 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).
Before the Court, the applicant appeared in person and was assisted by an interpreter in the Bengali language. The Minister was represented by a solicitor.
The application to the Court
The grounds of the application to the Court are in the following terms:
“1. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.
Particulars
The Tribunal failed to assess my religious claim under the complementary protection ground.
2. The Tribunal failed to provide adverse information to me to respond under s424(aa).
3. The Tribunal failed to consider my claim on the basis of my political opinion against Islamic extremists.
Particulars
I mentioned in my hearing that I will face significant harm due to my imputed political opinion. The Tribunal failed to adequately assess my claim.”
Consideration
Before the Court, it became apparent from the applicant’s oral submissions that, with respect to the applicant, he did not understand the nature of the proceedings that he had instituted in this Court.
Ultimately, it was clear that the applicant’s complaint before the Court was that he had put his circumstances before the Tribunal, and the Tribunal did not believe, or did not accept, that these circumstances would lead to a “real risk” of harm if he were to return to Bangladesh.
In essence, what the applicant sought from the Court in his oral submissions was for the Court to look at all the material, to listen to him, to substitute its own findings of fact for those of the Tribunal, and to arrive at a different conclusion to that made by the Tribunal.
In short, the applicant seeks impermissible merits review from the Court and, therefore, no legally arguable case can be said to arise from the applicant’s oral submissions in those circumstances.
The applicant was taken to each of the grounds of his application, and asked to make submissions. The applicant explained that he had spoken to an “assistant”, employed in the legal firm that had assisted him before the Tribunal, and that the “assistant” had drafted the grounds for him.
A number of things must be said. First, it is clear that whoever drafted the applicant’s grounds on his behalf, has failed to understand a very important and basic relevant principle in these proceedings. That is, as I sought to explain to the applicant, failure by the Tribunal to consider a claim, or an aspect of a claim, by an applicant, may indeed reveal jurisdictional error in certain circumstances. But the use of the phrase “failed to consider my claims”, when what is really meant is “failed to accept my claims”, is a misunderstanding of what the concept of “failure to consider” means, in matters of this type.
The legal “assistant” who drafted the applicant’s grounds should perhaps, before he or she engages in any such project again, takes steps to familiarise themselves with such authorities as NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 and the High Court’s decision in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389.
Ground one of the application to the Court complains that the Tribunal failed to exercise its jurisdiction, by failing to consider “all aspects” of the applicant’s claims. The particulars are that the Tribunal failed to “assess [the applicant’s] religious claim”, under the complementary protection criterion (that is, s.36(2)(aa) of the Act).
Before the Court, the applicant explained that the Tribunal, in his understanding, failed to assess his religious claims. However, the evidence before the Court reveals that the Tribunal extensively considered the matter of the applicant’s Hindu religion, and the applicant’s claims in that regard, at [21] (at CB 241) to [26] (at CB 245) of its decision record.
In relation to the particulars to ground one, the Tribunal specifically considered the complementary protection criterion (s.36(2)(aa) of the Act), at [30] to [32] (CB 246) of its decision record and, relevantly, found at [31] (CB 246) of its decision record, that it was “not satisfied that [the applicant] faces a real chance of harm” because of his religious circumstances. In that paragraph, the Tribunal made specific reference to its earlier expressed findings concerning the applicant’s religious claim, that is, the findings set out at [21] (at CB 241) to [26] (at CB 246) of its decision record.
In essence, as the Minister correctly, in my view, submits, the Tribunal made factual findings concerning the applicant’s claims relating to his religion and, for that matter, imputed political opinion, and the Tribunal relied on those earlier expressed factual findings to also find that the applicant did not satisfy the complementary protection criterion (s.36(2)(aa) of the Act), for the grant of the visa.
There is now very clear authority that the Tribunal was entitled to rely on its earlier expressed factual findings in considering the complementary protection criterion (s.36(2)(aa) of the Act) (SZSGA v Minister for Immigration, Multicultural and Indigenous Affairs [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26).
In all, ground one seeks impermissible merits review. No legally arguable case is raised by ground one.
Ground two asserts a failure by the Tribunal to provide adverse information to the applicant pursuant to what is said to be “s.424(aa)”. As I explained to the applicant, there is no such section in the Act.
The ground as pleaded, and as drafted by the legal “assistant”, is therefore, hopeless and cannot succeed. However, it may be, as the Minister submits, that this was some mistaken reference to s.424AA of the Act. If that is the case, then s.424AA of the Act is a facilitative mechanism by which the Tribunal may orally discharge at a hearing, any obligation that it may have under s.424A(1) of the Act. That is, that in order for a breach of s.424A of the Act to be established, it must first be shown that the obligation in s.424A(1) of the Act is enlivened.
The ground, as drafted makes no reference whatsoever to s.424A(1) of the Act. Further, there are no particulars to the ground set out in the application to the Court. Even further, there is nothing that I can see in the evidence that is before the Court that demonstrates the Tribunal’s obligation pursuant to s.424A(1) of the Act was enlivened, such that any use of s.424AA of the Act was required. No arguable case arises from ground two.
Ground three makes, in essence, a similar assertion to ground one, but with a focus on the applicant’s claimed imputed political opinion. Ground three suffers from the same deficiencies that I have explained in relation to ground one. It also seeks impermissible merits review, and does not raise any legally arguable case.
At a hearing pursuant to Part 44 of the FCC Rules, r.44.13 of the FCC Rules confines an applicant to the grounds as stated in the application to the Court. However, I did consider whether the interests of justice required that r.44.13 of the FCC Rules be waived pursuant to r.1.06 of the FCC Rules. In that light, there are two further matters.
One, before the Court today, the applicant claimed that the Tribunal “looked at him and made a decision”, and that “it had already made up its mind”.
This may be understood as an attempt by the applicant to assert that the Tribunal had prejudged the outcome of his case, and was therefore biased. As the Minister’s solicitor submitted today, an allegation of bias is a very serious allegation to make against an administrative decision-maker. This is because an allegation of bias, unlike other assertions of legal error, is an attack on the very integrity of the decision-maker. For that reason, the law requires that such allegations be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] and SZRUI v Minister for Immigration, Multicultural and Indigenous Affairs and Citizenship [2013] FCAFC 80 at [22]).
Despite have the opportunity to do so by order of the Court, the applicant has provided no evidence whatsoever to support the claim of bias. I note further that the applicant, on his own submission to the Court, prepared the grounds of the application with the assistance of someone employed by a legal firm.
In the absence of any evidence from the applicant, what is left is the Tribunal’s decision record itself. It is rare that bias can be made out on this basis alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303)
In the current case, there is nothing in the Tribunal’s decision record, or anywhere else in the evidence before the Court, to indicate that a legally arguable case of bias or, for that matter, the apprehension of bias, may arise. The applicant’s complaint, therefore, as expressed orally, does not reveal any arguable case that should be further considered by the Court.
The second separate matter is that I have considered, independent of the applicant’s stated grounds, the Tribunal’s decision in the context of the evidence that has been put before the Court. Following that consideration, I cannot find that any arguable case arises for the relief that the applicant seeks.
Conclusion
It is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make that order.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 24 November 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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