SZVWE v Minister for Immigration

[2015] FCCA 1325

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1325

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – whether the put adverse information to the applicant – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Show cause hearing – application for an adjournment – application dismissed.

Legislation: 

Migration Act 1958 ss.36(2)(a), 36(2)(aa), 424A, 424AA, 476

Applicant: SZVWE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3520 of 2014

Judgment of: Judge Street

Hearing date: 15 May 2015

Date of Last Submission: 15 May 2015

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms H. Musgrove
Sparke Helmore

ORDERS

1. The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3520 of 2014

SZVWE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW 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 in respect of the decision of the Tribunal on 27 November 2014 affirming the decision of the delegate not to grant the applicant a protection (class XA) visa.  This matter was listed for show cause hearing under r.44.12 today and in response to the applicant’s submissions the applicant provided a note indicating that he wished to seek an adjournment. 

2. There is no utility in granting an adjournment as the proceedings are clearly doomed to failure and to do so will only increase the costs of the parties and utilise limited Court time. 

3. In response to the submissions by the first respondent, the applicant indicated he had nothing to say.  The application identifies the following grounds:

   1. The Tribunal was in breach of s424A of the Migration Act 1958.

   Particular:

   The Tribunal failed to disclose a number of information that it obtained and used to affirm the decision under review. For example the list of events that were referred to, in the decision record, obtained from the Departmental record and interview sessions. The Tribunal did not put all of those information to the applicant in a way that the applicant could understand would be the reason or part of the reasons to affirm the decision under review.

   Particular

   The Tribunal found that the applicant’s persecution were not based on a convention ground. It failed to understand the applicant fell within the meaning of a particular social group, “Bangladesh men who were harmed because of personal reasons using political instruments”.

4. This is a case where the applicant’s representative forwarded to the Tribunal the applicant’s protection visa application together with the applicant’s written statement and a copy of the delegate’s decision. It is in those circumstances that that information is exempted from the procedural requirements as identified by s.424A(3)(ba) – (b). I accept the first respondent’s submission that there is no substance in relation to the first ground in the application.

5. It was open to the Tribunal to take into account the applicant’s statement and interview at the time of entry. Relevantly, in relation to the findings at paras.22, 24 and 26, they are not matters that comprise information that the Tribunal considers would be the reason or part of a reason for affirming the decision that’s under review, within s.424A(1)(a).

6. I accept the respondent’s submissions that this is not a case where there was an obligation to give any written letter under s.424A in respect of the findings referred to above, which did not contain in their terms of rejection denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations. I also accept the respondent’s submission that s.424A was not engaged in this case by reason of being matters that merely tend to reveal inconsistency in the applicant’s evidence.

7. To the extent relevant, I accept the first respondent’s submission that the Tribunal complied with s.424AA to the extent that it was obliged to do so. Ground 1 does not identify any jurisdictional error. Ground 2 alleges that the Tribunal failed to take into account an essential integer of the applicant’s claim. It is clear that that part of the applicant’s claim identified at Court Book 29-30 was taken into account by the Tribunal in the finding at para.19 and that the Tribunal made further adverse findings that clearly subsumed this integer within paras.25, 26, 28 and 29.

8. To the extent that the applicant asserts that he advanced a claim by reason of membership of a particular social group, this was not raised by the material or evidence before the Tribunal and it was not a matter that arose clearly from the material before the Tribunal.  The Tribunal is not required to engage in constructive or creative activity in respect of a possible claim.  There is no substance in relation to ground 2 of the amended application and it fails to disclose an arguable jurisdictional error.

9. In this matter, the applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.  The applicant applied for a protection visa on 12 December 2012, which was refused on 19 July 2013.  The Tribunal carefully identified the relevant law and summarised the claims and evidence of the applicant.  The applicant appeared before the Tribunal at a hearing on 6 November 2014 to give evidence and present arguments and was assisted by an interpreter. 

10. The Tribunal identified claims and evidence given at the hearing as well as the material received on 28 October 2014 and the supplementary material received on 17 November 2014.  It is clear from what is set out in paragraph 15 that the Tribunal properly raised the dispositive issues with the applicant.  In this case, the Tribunal expressed strong doubts as to the credibility of the applicant in respect of his claims for the reasons summarised in paras.22 to 26 and relevantly made adverse findings:

    27.    As explained to the Applicant at the hearing, while the delegate generally accepted his claim to fear harm locally in Bangladesh as a supporter of the BNP and a person responsible for beating an Awami League member, I believe there are reasons to doubt the credibility of these claims.  Having considered all the evidence before the Tribunal, individually and cumulatively, I am not satisfied that his motorcycle was in fact burned by people who were his [relatives] and also members or supporters of the Awami League.  I am not satisfied that the BNP assisted him in attacking and beating those responsible or that BNP members were attacked by the Awami League in retaliation.   It follows that I do not accept he has been blamed by members or supporters of the BNP for injuries suffered in such an incident.  I do not accept that it was for these reasons that he left his village and went to Dhaka then later travelled to [Country 1] where he worked for four years.  I am not satisfied that he was ever singled out for harm because of a real or imputed political opinion in favour of either the BNP or the Awami League.  Nor am I satisfied that his [relatives] are ranged against him in a long-running dispute over land ownership which has involved them in threatening or harming him or other members of his family, with or without the support of the Awami League, or bringing continued legal cases against him.  He does not claim to fear harm in Bangladesh for any other reason and no other reason is apparent on the fact of the information before the Tribunal.

    28.    I am not satisfied that the Applicant has a well-founded fear of persecution because of his political opinion or for any other Convention-related reason should he return to Bangladesh, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

    29.    For the reasons given above, I am not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  Therefore he does not satisfy the criterion set out in s.36(2)(a).

11. The Tribunal also addressed the issue of complementary protection, made adverse findings:

    32.    In the light of the information before the Tribunal, considered both individually and cumulatively,  I am not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Bangladesh there is a real risk that he would suffer significant harm as defined in s.36(2A)  There is no suggestion that he satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the Applicant does not satisfy the criterion in s.36(2).

    33.    The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.

12. I am clearly satisfied that the application fails to disclose any arguable jurisdictional error and that this is an appropriate case to dismiss under r.44.12.  The amended application is dismissed under r.44.12.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 May 2015