SZVTQ v Minister for Immigration

[2016] FCCA 942

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVTQ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 942

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credit findings against the applicant – whether the Tribunal took irrelevant considerations into account – whether the Tribunal failed to take relevant considerations into account – bias – no arguable jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Federal Circuit Court Rules 2001, r.44.12

Applicant: SZVTQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3381 of 2014

Judgment of: Judge Street

Hearing date: 22 April 2016

Date of Last Submission: 22 April 2016

Delivered at: Sydney

Delivered on: 22 April 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms A Lucchese
Sparke Helmore

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

3. The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3381 of 2014

SZVTQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 31 October 2014 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.  The applicant arrived in Australia as an unauthorised maritime arrival in June 2012 and made an application for protection 11 December 2012.

3. The applicant claimed to fear returning to Bangladesh on the basis of his political opinion as a member of the Bangladesh National Party (“BNP”).  The applicant claimed that he ran a grocery store and gave products on credit.  The applicant claimed that one of his customers refused to pay him, which resulted in a fight.  That person, the applicant claimed, had connections with the Awami League and had a brother with Awami League connections who was also a criminal.

4. The applicant claimed that after that incident a group of people came to his house, but he was able to escape.  The applicant also made claims about his grocery store being destroyed and his house being damaged.  The applicant claimed that after he left Australia his family continued to be threatened.  The applicant claimed he would be killed if he returned to Bangladesh.

5. The Tribunal made adverse findings in relation to the applicant’s credit and identified that it had formed the view that the applicant had not been truthful in his claims. It was in those circumstances that the Tribunal found the applicant did not have a well-founded fear of persecution for any conventional reason or reasons and that he did not meet the requirements set out in s.36(2)(a) of the Migration Act 1958.

6. The Tribunal also found that there were no substantial grounds for believing that as a necessarily reasonable and necessarily and foreseeable consequence of the applicant being removed from Australia to Bangladesh there was a real risk he would suffer significant harm, and the Tribunal found the applicant did not meet the criteria for contravention protection under s.36(2)(aa) of the Migration Act 1958.

7. On 18 February 2015, a Judge of the Court made orders fixing the matter for a hearing today, and provided the applicant with an opportunity to file an amended application affidavit evidence and submissions.  The applicant did file an outline of submissions but did not file any other document. 

8. The grounds in the application are as follows:

   Ground One

   The Tribunal committed jurisdictional error when it denied the Applicant’s application and breached procedural fairness, failing to determine that the Applicant as a BNP Activist in Bangladesh and persecuted by the present AL government elements therefor the Tribunal decision should be set aside according to the law.

   Particulars

   Tribunal stated (RRT3 decision, p 9 at [30-31] “…Are there any substantial ground for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia there is real risk that will suffer significant harm---?”

   Ground Two

   The Tribunal committed jurisdictional error when it failed to put the Applicant on notice that the issue that the did not find the applicant is not a high profile BNP leader but a BNP activist. Thereof the tribunal should remit the decision of the delegate as AL has killed thousands of low profile BNP activists like me (Rapid Action Battalion)

   Particulars

   The Tribunal whilst referred that the applicant did not meet the refugee criteria in s.36(2)(a) and alternative criteria s.36(2)(aa). In fact the applicant has met the criteria of section s.36(2)(a) or alternative criteria s.36(2)(aa) and qualified to have protection visa.

9. The matter was listed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. At the commencement of the hearing, the court explained to the applicant the nature of the show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.  The Court explained to the applicant that the nature of the hearing was one to determine whether there was an arguable case of relevant legal error by the Tribunal.

10. The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that, if satisfied there was an arguable case of legal error by the Tribunal, the matter would be fixed for further hearing.  The Court explained that, if not satisfied that the application disclosed any arguable case of legal error by the Tribunal, the application would be dismissed. 

11. The Court explained to the applicant that it would identify the evidence and then hear from the applicant as to whether there is an arguable case and then hear from the solicitor for the first respondent and then hear the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

12. In relation to ground 1, it is apparent from the court book that the applicant was invited by letter dated 22 September 2014 to attend a hearing on 22 October 2014.  The applicant attended on that date before the Tribunal to give evidence and present arguments, and was assisted by an interpreter as well as being represented by his registered migration agent. The structure of the Tribunal’s reasons identifies the applicant’s claims and an evaluation of the applicant’s credit in relation to his claims.  There is nothing on the face of the reasons of the Tribunal to disclose any arguable case that the Tribunal failed to comply with the statutory requirements or breached any obligation of procedural fairness.

13. On the face of the material before the Court, the applicant had a genuine hearing and it was a matter for the Tribunal to make credit findings in relation to the applicant’s claims.  Those adverse credit findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  Ground 1 fails to identify any arguable jurisdictional error.

14. In relation to ground 2, it is apparent from the structure of the Tribunal’s reasons that the applicant’s credit in relation to his claims was a live issue.  There is no substance in the contention that the Tribunal was required to take some other step in relation to the assessment of the applicant’s credit as to his claimed profile and involvement in BNP.

15. Ground 2 is, in substance, an impermissible challenge to the adverse findings by the Tribunal and fails to disclose any arguable case of jurisdictional error. 

16. In relation to the applicant’s submissions, the applicant contended that in making the decision the Refugee Review Tribunal acted without jurisdiction or in excess of its jurisdiction when it failed to take into account relevant considerations. 

17. No relevant considerations which the Tribunal failed to take into account were identified by the applicant or in the applicant’s submissions, and the particulars advanced in the outline of submissions were in substance an impermissible challenge to the adverse findings of fact made by the Tribunal.

18. There is nothing on the face of the Tribunal’s reasons to support the contention that the Tribunal misunderstood the applicant’s evidence. The assertion that the Tribunal acted without jurisdiction or in excess of jurisdiction fails to disclose any arguable case of jurisdictional error.

19. Insofar as the submissions refer to the adverse findings of credit by the Tribunal, those adverse findings were open and cannot be said to lack an evident and intelligible justification. 

20. Insofar as the submissions suggest that the Tribunal asked unreasonable and irrelevant questions, there is no evidence to support that contention, and the structure of the Tribunal’s reasons are consistent with the Tribunal properly discharged its statutory obligation.

21. Insofar as the submissions suggest the applicant was denied procedural fairness on the basis that the hearing was not conducted freely and fairly, there is no material to support that contention, and the structure and content of the Tribunal’s reasons are inconsistent with that contention.

22. To the extent that it is suggested that the Tribunal made a jurisdictional error by failing to understand the applicant’s difficulties and circumstances, there is no evidence before the Court to support any such failure by the Tribunal. To the extent that it is suggested that the Tribunal intentionally asked irrelevant questions to undermine and confuse the applicant, the passage quoted in the applicant’s submissions identifies an analysis of the applicant’s credit consistent by the Tribunal with its statutory obligations and does not support the contention of any irrelevant questions.

23. Insofar as the reference to intentional irrelevant questions was intended to advance an allegation of bias, such an allegation must be clearly alleged and properly proved.  The adverse findings by the Tribunal in relation to the applicant’s claims are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair and impartial mind to the determination of the matter on its merits.

24. To the extent that it is suggested that the Tribunal member unreasonably raised questions about the information given by the applicant in the first interview, there is nothing in the Tribunal’s reasons to support the contention that it was unreasonable for the Tribunal to raise with the applicant the inconsistencies that were apparent from the material provided by the applicant on the first interview.

25. The raising by the Tribunal with the applicant of the information provided at the first interview is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial or independent mind to the determination of the matter on its merits.  There was nothing unreasonable in the Tribunal raising with the applicant the inconsistencies in his evidence.

26. To the extent that the applicant’s submission suggests he was denied procedural fairness, there is no substance, on the face of the Tribunal’s reasons or the material in the court book, with that contention and I am satisfied that on the material before the Court the applicant had a genuine hearing. The suggestion that the Tribunal’s reasons were confused or inconsistent is not supported by the content of the Tribunal’s reasons. 

27. The suggestion by the applicant that the Tribunal failed to apply the correct test in relation to complementary protection is lacking in substance and does not disclose any arguable jurisdictional error.  The Tribunal identified in its reasons the principles relating to complementary protection in para.9, and its reasoning in paras.31 to 35 are consistent with the Tribunal applying the correct test in relation to complementary protection. Nothing in the applicant’s outline of submissions or anything said by the applicant from the bar table identified any arguable jurisdictional error. 

28. The applicant maintained that he wanted time and did not want to be sent back to Bangladesh.  I am satisfied that the application fails to disclose any arguable case. 

29. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  4 May 2016