SZVUY v Minister for Immigration and Border Protection
[2017] FCA 1457
•22 November 2017
FEDERAL COURT OF AUSTRALIA
SZVUY v Minister for Immigration and Border Protection [2017] FCA 1457
Appeal from: SZVUY v Minister for Immigration & Anor [2017] FCCA 1982 File number: NSD 1338 of 2017 Judge: RANGIAH J Date of judgment: 22 November 2017 Catchwords: MIGRATION – appeal from Federal Circuit Court – refusal to grant protection visa – whether Tribunal failed to consider evidence – no jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 424 and 425 Cases cited: BCN16 v Minister for Immigration and Border Protection (2017) FCCA 1504
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Town Planning Ward v Society for the Protection of the Harbour [2004] 1 HKLRD 396
Date of hearing: 22 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The Appellant did not appear Solicitor for the First Respondent: Mr A Keevers of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1338 of 2017 BETWEEN: SZVUY
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
22 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(EX TEMPORE – REVISED)RANGIAH J:
This is an appeal from a judgment of the Federal Circuit Court of Australia, delivered on 19 July 2017. The appellant sought review of a decision of the second respondent, then called the Refugee Review Tribunal (the Tribunal), affirming a decision of the delegate of the first respondent to refuse the appellant the grant of a Protection (Class XA) visa.
The appellant is a citizen of Bangladesh. He arrived in Australia on 26 July 2012. On 19 December 2012, he lodged an application for a protection visa. That application was refused by the delegate on 18 October 2013. The appellant then lodged with the Tribunal an application for review of the delegate’s decision.
Before the Tribunal, the appellant claimed to fear harm in Bangladesh on the basis of his political opinion. He claimed to be a supporter of the Bangladesh Nationalist Party (BNP) and to have participated in their activities. He claimed that his friend had been abducted and killed by supporters of the Awami League political party. Following his friend’s abduction, the appellant was attacked by Awami League supporters. The appellant’s friends suggested that he leave Bangladesh. The appellant attempted to relocate within Bangladesh, but the Awami League supporters found out where he was. He feared that they would kill him. The appellant also claimed to fear harm at the hands of his uncle, who was an Awami League supporter. The appellant claimed his uncle wished to harm him partly because he disapproved of the appellant’s love for his cousin (the uncle’s daughter), and partly because of the appellant’s political views. The appellant had proposed marriage to his cousin, but was rejected.
On 14 November 2014, the Tribunal decided to affirm the decision under review. The Tribunal found that the appellant had not been truthful in his evidence. The Tribunal identified a number of concerns it had with the appellant’s evidence, including inconsistencies in dates given by the appellant, inconsistencies in the appellant’s evidence over the timing of his political activities and past employment, and implausibilities in the appellant’s account regarding his friend who was abducted. The Tribunal noted that while none of its concerns as to the appellant’s credit were fatal in themselves, cumulatively, they led to the conclusion that the appellant had not been truthful.
The Tribunal concluded that the appellant had exaggerated his involvement in the BNP, and that he had minimal if any involvement with that organisation. The Tribunal rejected the entirety of the appellant’s claims to have suffered harm in the past on account of his political involvement. The Tribunal also rejected the appellant’s claims to fear harm from his uncle. It rejected the appellant’s claim to have been threatened by his uncle in the past. The Tribunal considered the appellant’s evidence about these matters to be untruthful. Having rejected the appellant’s claims of past harm, the Tribunal found that the appellant would not face harm in the future for any Convention reason. Accordingly, the Tribunal affirmed the decision under review.
Before the Federal Circuit Court, the appellant relied upon the following grounds.
[1] In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
Particulars:
RRT unreasonably raised doubt over the applicant’s political activities and the membership of BNP.
The applicant claims to fear serious harm in Bangladesh on the Conventional grounds of his actual or imputed political opinion in favour of the Bangladesh Nationalist Party and against the Awami League
The Tribunal raised several irrelevant issues to discredit the facts that he was a active member of the BNP party.
[2] The Applicant claims that the Tribunal made a jurisdictional error when intentionally asked several irrelevant questions to undermine his poliitcal activities and his role in the BNP
Particulars:
The Tribunal failed to identify accurately the particular Social group namely a member of BNP.
The applicant submitted that the applicant fears persecution because of having the membership of a particular social group. The applicant can be considered a member of a particular social group, namely a member of the BNP.
[3] The applicant claims that the Tribunal’s finding of reasons is Confused and the test for persecution was not applied according to the Rules of the Migration Act.
Particulars
The applicant claims that the test of fear of persecution applies whether the victim has a low profile or high profile. It is fact that high profile leaders are targated easily but it does not mean that low profile activists are not killed in any attacks. In reality the low profile political activists are killed first before the big political leaders in the name of security.
[4]The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958 The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.
Particulars:
The RRT ignored the relevant consideration related with complementary Protection set out in s 36(2)(aa).
The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognized in the Refugee Convention.
Applicant claims that his fear of harm or mistreatment is for the Convention reasons of political opinion and membership of the particular social group.
Applicant’s fear of harm is well-founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh.
(Errors in original.)
As to the first ground, the primary judge held that the appellant had not established failure by the Tribunal to take into account a relevant consideration, and that the ground did no more than express disagreement with the Tribunal’s reasoning and its finding that he was not telling the truth about his involvement with the BNP.
As to the second ground, his Honour held that it was open to the Tribunal to test the appellant’s claims and his credibility, and there was nothing in the evidence before the Court to show that the Tribunal intentionally asked what the appellant contended were several irrelevant questions in order to undermine his claims. The primary judge held that the Tribunal had not considered whether membership of the BNP was a social group for the purpose of the Convention, but that it was not required to do so because it had rejected the factual basis of his claim.
The primary judge held that grounds 3 and 4 merely asserted a failure to apply the correct test under s 36(2) of the Migration Act 1958 (Cth), and that the particulars of the grounds merely served to emphasise the appellant’s misunderstanding of what was available to him as a proper articulation of jurisdictional error on the part of the Tribunal.
The primary judge also addressed two sets of written submissions that the appellant had provided. His Honour noted that, for the most part, the submissions merely restated the appellant’s claims for protection, and complained that the Tribunal had not found in his favour. To the extent that the written submissions contended that the Tribunal breached its obligations of procedural fairness under the Act, his Honour noted that the appellant had been invited to attend a hearing before the Tribunal pursuant to s 425 of the Act, and that this invitation complied with the statutory and regulatory requirements. His Honour noted that the Tribunal had written to the appellant pursuant to s 424A of the Act and, in doing so, complied with the relevant statutory requirements.
The primary judge considered that, to the extent that the appellant contended that the Tribunal referred only to country information which was against his case, it was a matter for the Tribunal to decide upon the country information to which it had regard, and as to the weight that it gave such information. Further, the Tribunal did consider all of the integers of the appellant’s claim.
The Court did not accept that the Tribunal’s reasons were irrational or illogical. The primary judge also noted that the appellant’s second written submission invited the Court to adopt a “sliding scale of irrationality”, by reference to Town Planning Ward v Society for the Protection of the Harbour [2004] 1 HKLRD 396, a decision of a Court in Hong Kong. The primary judge noted that the same issue had been considered by the Federal Circuit Court in BCN16 v Minister for Immigration and Border Protection (2017) FCCA 1504. His Honour adopted the reasoning of Judge Manousaridis in that case, holding that where matters of illogicality or irrationality were said to arise in respect of a decision of the Tribunal, the Court was bound by the High Court’s reasoning in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130].
The primary judge accordingly dismissed the application.
The notice of appeal before this Court advances six grounds of appeal. Those grounds are:
1.The Judge of the Federal Circuit Court in His Honourable judgement delivered on 19 July 2017 failed to find error of law and relief under the Judiciary Act.
2.Besides the AAT did not follow the proper procedure as required by the act in arriving its decision in decing my protection visa review application.
3.The application may be heard and the appeal to the Honourable Court be allowed.
4.That the judgment made by the Honourable Judge Nicholls, given 19 July 17 at Sydney Registry, be set aside.
5.The decision of the AAT be quashed and allow applicant to stay in Australia.
6.Any further orders that this Honourable Court may deem appropriate.
(Errors in original.)
The appellant further contends, in his affidavit affirmed on 7 August 2017, that the primary judge breached the rules of natural justice, but has not provided any particularisation of such breach. The appellant did not file written submissions. The appellant did not appear at the hearing of the appeal. The appeal has proceeded in his absence.
The appellant’s grounds of appeal are wholly unparticularised. Having regard to the vagueness of the grounds, and to the absence of any submissions upon those grounds, I have been unable to discern any error in the reasons of the primary judge. Further, there is no denial of natural justice on the part of the primary judge that is apparent. The Federal Circuit Court had regard to the material filed by the appellant, including two sets of written submissions, and provided the appellant with an opportunity to make oral submissions in support of his application.
In these circumstances, I am not satisfied that any appellable error has been demonstrated. Accordingly, the appeal will be dismissed, with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 7 December 2017
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