SZVYV v Minister for Immigration and Border Protection
[2016] FCA 645
•27 May 2016
FEDERAL COURT OF AUSTRALIA
SZVYV v Minister for Immigration and Border Protection [2016] FCA 645
Appeal from: SZVYV v Minister for Immigration & Anor [2016] FCCA 471 File number: NSD 407 of 2016 Judge: NORTH J Date of judgment: 27 May 2016 Legislation: Federal Circuit Court Rules 2001 (Cth) r 35.13, 44.12 Date of hearing: 27 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 25 Counsel for the Appellant: The Appellant appeared in person. Counsel for the Respondents: Ms A Wong Solicitor for the Respondents: Mills Oakley ORDERS
NSD 407 of 2016 BETWEEN: SZVYV
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
27 MAY 2016
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs of the application as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
INTRODUCTION
Before the Court is an application for an extension of time within which to apply for leave to appeal from orders made by the Federal Circuit Court on 3 March 2016. The Federal Circuit Court, acting under r 44.12 of the Federal Circuit Court Rules 2001 (Cth), dismissed an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 11 December 2014. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a protection visa.
THE TRIBUNAL’S DECISION
The applicant is a citizen of Bangladesh. He claims to fear persecution on the ground of his Buddhist religion. The Tribunal found at [12] that:
The applicant has not presented a credible account of his circumstances.
The Tribunal found significant inconsistencies between the statement the applicant provided with his visa application and his oral evidence. For instance, in his written statement he claimed that his father’s shop had been burnt and destroyed on 28 July 2010 and that a false case had been filed against his father and himself. He claimed his father went into hiding, then handed himself in to the police and was tortured while on remand. In oral evidence he said that the fire probably occurred in 2009. He said his father was not arrested but hunted. The Tribunal found that the two versions were inconsistent. The applicant did not mention in oral evidence that a false case was filed against him. He did not say in his written statement that his father had been arrested or taken away. In his oral evidence he did not mention that his father had been taken away.
The Tribunal concluded, at [20] and [21]:
20.I consider that the discrepancies set out above and discussed with the applicant at the hearing are major and fundamental to the applicant's case. I do not consider that the applicant would not have remembered key details that he presented in his written statement, such as the claim that he himself was the subject of a false case; nor failed to mention at the earliest opportunity claims that were presented for the first time at the hearing, such as the claim that his father was taken into custody before the applicant left Bangladesh, if he were telling the truth. Nor do I accept that the applicant would have been able to provide the precise date of the fire in the market in a written statement prepared only twelve months ago; yet by the time of the hearing be unable to provide even the correct year for this key event, especially given that the applicant claims that it was this and the related subsequent events which precipitated his departure from Bangladesh.
21.I consider that these major discrepancies in the applicant's evidence about the events which he claims led to his departure from Bangladesh indicate that he is not telling the truth.
Another matter examined by the Tribunal in which it found fundamental discrepancies concerned the identity of the person responsible for the fire and for laying the false charges. In his written statement, the applicant claimed that it was a Muslim fundamentalist leader, Zakir Hossein. At the hearing he said Maoists were responsible and that Zakir Hosseinwas a Maoist. The Tribunal concluded at [25] that:
The applicant's claims as put in his written statement were predicated entirely on the basis that, as Buddhists, he and his family suffered religious persecution by Muslim fundamentalists who received political support from the BNP. I do not accept that, if his claims were truthful, he would have said at the hearing that an entirely different entity was responsible for the persecution he claimed to have suffered, and which caused him to leave Bangladesh; or that he would have stated, when questioned about the apparent discrepancy, that he did not know which group was causing these problems.
The applicant said that he feared if he returned to Bangladesh he would be killed because “they are trying to snatch away our land”. The Tribunal observed to the applicant that the applicant’s father remained in Bangladesh and had not been killed for his land.
After the Tribunal examined certain other issues, it considered the applicable country information. The Tribunal referred to, and accepted, the opinion of the Department of Foreign Affairs and Trade at [33] that:
3.35 On the whole, DFAT assesses that instances of religious and political violence against the Buddhist community are uncommon. Buddhists face a low risk of societal violence on a day-to-day basis and are generally able to practice their faith without interference.
The Tribunal rejected the applicant’s claim that he fears harm as a result of land-grabs. The Tribunal said that country information indicated the main victims of such crimes are Hindus. The Tribunal concluded, at [42] that:
In any case, the applicant's evidence about his own circumstances was so unsatisfactory that I am not satisfied that there is a real chance or risk that he would be harmed for this reason if he returns to Bangladesh. He said that the family's land is in his father's name and was therefore unable to explain why he would be killed by people who wanted to take over his family's land as soon as he returned, when his father, who remains in Bangladesh, has not been killed or harmed during the four years that the applicant has been absent. The applicant also sought to suggest that his family's lands had already been seized leaving them unable to survive; yet at the beginning of the hearing he stated that his family made their living from their agricultural produce. When queried about this discrepancy, he conceded that they still had land and were able to sell their produce, although some of it was pilfered. I consider that the applicant has exaggerated the impact on his family of theft of their agricultural produce, and of attempts by unknown parties to take over their land, and given my concerns about the applicant's overall lack of credibility, I am not satisfied that there is a real chance or a real risk that the applicant faces harm of any kind as a consequence of attempts by others to seize his family's land.
The Tribunal accepted that Buddhists and Buddhist temples were sometimes targeted, but found at [43] that:
…I am not satisfied that such incidents happen with such frequency that it can be said that even if the applicant were to reside in a Buddhist temple on return to Bangladesh, as he claims he has in the past, he has a well-founded fear of persecution for this reason, or that he would be at real risk of significant harm.
THE FEDERAL CIRCUIT COURT JUDGMENT
On 6 January 2015, the applicant filed an application for review in the Federal Circuit Court. The application contained three grounds as follows:
1.The Tribunal did not consider that I am a citizen of Bangladesh though I have provided adequate documents as proof of my Bangladeshi citizenship which was not accepted by the Tribunal. I believe it is an error of jurisdiction.
2.I have provided a number of documents in support of my claims. I tried to explain the reasons of my persecutions at the Tribunal. The Tribunal did not accept me as a credible witness and made errors of jurisdiction.
3.I was persecuted as a member of Buddhist religious belief. It is evident that Buddhists are persecuted in Bangladesh. But the Tribunal did not consider that I have real chance of harm amounting to persecution if returned to Bangladesh and my persecution is not well founded for my religious belief. The Tribunal refused my application and made errors of jurisdiction.
On the first ground, the Federal Circuit Court said at [22]:
It is plain that there is no substance in the first ground of review. The ground is based on a false premise. The Tribunal reversed a finding by the Minister's delegate about the applicant's nationality. The Tribunal accepted that the applicant is a national of Bangladesh. There is no error evident in relation to that part of the Tribunal's decision.
The Federal Circuit Court next held that the third ground of review raised an impermissible challenge to the merits of the Tribunal decision.
The Federal Circuit Court then dealt with the claim contained in ground 2 that the applicant was denied procedural fairness. The ground concerned [13] of the Tribunal reasons, which read as follows:
There were significant inconsistencies between the claims put forward by the applicant in the statement submitted with his protection visa application, and with his oral evidence given at the Tribunal hearing. The applicant sought to explain the inconsistences on the basis that the written statement was prepared "a long time ago", when he was in a composed frame of mind; now he is under a lot of pressure and is living in difficult circumstances, which means that he cannot recall all the details. The applicant stated at the beginning of the hearing that he was not well; he said that he has a cough, congestion in the chest, and a fever. He said that he has not sought medical treatment because he does not have a Medicare card. I asked several times whether he wished to postpone the hearing, explaining that it was very important that he was able to give evidence properly; he stated clearly that he wanted to proceed with the hearing. I offered him a brief adjournment to take some Panadol to reduce his fever, but again he declined. The applicant did not appear to be particularly unwell during the course of the hearing although he coughed from time to time. I am satisfied that he was capable of giving evidence and that the problems in his testimony were not the result of ill health on the day of the hearing, or of any particular stress or mental pressure that the applicant is under, other than the normal stress and anxiety associated with uncertain immigration status and a tribunal hearing.
The Federal Circuit Court concluded, at [26] and [27] that:
26.The Tribunal satisfied itself that the applicant was fit to participate in the hearing. Further, he was given the opportunity to seek an adjournment, but elected to continue. Finally, the Tribunal took into account the asserted illness in considering the manifest credibility problems that emerged from the applicant's oral evidence. The Tribunal satisfied itself that the applicant's asserted illness did not explain those numerous and serious credibility problems.
27. From my own examination of the material, there is, in my view, no arguable case of jurisdictional error available to the applicant.
THE APPEAL
On 23 March 2016, the applicant filed an application for an extension of time in which to file an application for leave to appeal. Rule 35.13(a) of the Federal Court Rules 2011 (Cth) provides that such an application must be filed within 14 days of the date on which the order in question was made. In this case the order was made on 3 March 2016. Consequently, an application for leave to appeal had to be filed by 17 March 2016. In fact, it was filed six days later.
When considering an application for an extension of time the Court usually takes into account any explanation for the delay and the prospects of success of the appeal if leave were to be granted.
The applicant explained the reason for the delay in his oral submission. He said he was told by friends that the time limit was 28 days. I am prepared to accept this explanation. However, the fate of the application turns on an assessment of the prospects of success.
The applicant filed a document setting out the proposed grounds of appeal as follows:
2.I believe that the Federal Circuit Court Judge did not make a correct decision in deciding my application in the Federal Circuit Court because he failed to find that I was denied procedural fairness by the Refugee Review Tribunal not giving me the opportunities to address all issues identified in my application for a protection visa and refused my application.
3.The Federal Circuit Court did the mistake not finding that the Tribunal failed to consider that my family members including me were not a victim of persecutions for our religious belief prior to my departure from Bangladesh to India as a member of minority religious group by the activist of Bangladesh Nationalist Party (BNP) and Jamat-e-Islami.
4.The Honourable Judge failed to find that there was a lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal refused my application for a protection visa without taking into consideration of false cases filed against me and my father by BNP-Jamat hooligans and the risk of harms I experienced in Bangladesh prior to leave for India.
5.I believe that Honourable Judge made mistake as he failed to consider that the Tribunal failed to give me an opportunity to respond to independent evidences in the possession of the Tribunal which suggests that I shall not be a victim of harassment for my religious belief if returned to Bangladesh.
6.It is believed that Honourable Judge made mistake not finding the Tribunal's failure to accept the documents I submitted relevant to my protection visa application and to consider the persecutions such as setting fire of our shop and grabbing land my family experienced in Bangladesh were genuine and well-founded at the time of decision and the Tribunal refused my claims for a protection visa on the ground that I am not a credible witness for my claims.
7. It is believed that Honourable Judge did mistake not finding that the Tribunal made mistake in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s.36(2) of the Act of Protection visa.
The applicant appeared at the hearing of the appeal. He was not legally represented, but he had the assistance of an interpreter in the Bengali language.
The applicant was asked to explain the errors alleged to have been made by the Tribunal in the Federal Circuit Court. He said that he was sick and feeling unwell when he gave evidence before the Tribunal. He said his mental health was not good at the time. These were the reasons his evidence was not consistent with the written statement provided with his visa application. The applicant said that his written statement was correct and the Tribunal was wrong not to accept it. He also said that the Tribunal was wrong to say that he was from India not Bangladesh.
When the applicant was asked if he wished to explain the grounds set out in the written draft grounds of appeal he said he did not. He said they were prepared for him by a member of his community.
In order to succeed in this application the applicant must establish that the Tribunal fell into jurisdictional error and that the Federal Circuit Court failed to apprehend that fact. The applicant’s argument that the Tribunal should have accepted his written statement challenges the fact findings of the Tribunal. That challenge amounts to a disagreement with the Tribunal’s assessment of the merits. It does not, however, demonstrate jurisdictional error.
The applicant’s complaint about feeling unwell at the time of the Tribunal hearing, which is raised in both the proposed ground of appeal numbered 2 and in his oral submissions on the appeal, was correctly dealt with by the Federal Circuit Court. Although the applicant was dissatisfied with the outcome he did not raise any argument which indicated error in the approach of the Federal Circuit Court on this issue.
In substance, proposed grounds 3 to 7 challenge fact findings made by the Tribunal, even though some are expressed in terms of “failing to consider” or by reference to a denial of procedural fairness. The finding of facts is the role of the Tribunal, and it is not open to this Court to interfere with those findings unless jurisdictional error is demonstrated. No argument was raised that the errors amounted to jurisdictional errors, nor is it evident that error, whether jurisdictional or otherwise, was made by the Tribunal.
It follows that there is no utility in the grant of an extension of time within which to file an application for leave to appeal because any such appeal would be bound to fail.
The application is dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 1 June 2016
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