WZATF v Minister for Immigration & Anor
[2014] FCCA 333
•7 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATF v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 333 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – protection visa application – student visa on arrival – actual or imputed political opinion – membership of particular social group – membership of Bangladesh National Party – alleged attacks on family members – credibility and factual findings – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 424A, 424B, 441A(5), 474, 499 Migration Regulations 1994 (Cth), reg.4.35 |
| Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Minister for Immigration & Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18 Minister for Immigration & Citizenship v SZJSS& Ors (2010) 243 CLR 164; [2010] HCA 48 Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 SZDFZ v Minister for Immigration & Anor (2008) 168 FCR 1; [2008] FCA 390 |
| Applicant: | WZATF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 252 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 February 2014 |
| Date of Last Submission: | 27 February 2014 |
| Delivered at: | Perth |
| Delivered on: | 7 March 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr B Dube |
| Solicitors for the First Respondent: | Sparke Helmore | ||
| Submitting appearance, save as to costs. |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 252 of 2013
| WZATF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application for judicial review
By an application filed on 17 September 2013, the applicant seeks judicial review of a decision of the second respondent, the Refugee Review Tribunal[1] made on 22 August 2013.[2] The Tribunal affirmed the decision of the delegate[3] of the first respondent, the now Minister for Immigration & Border Protection,[4] dated 12 December 2012, refusing to grant a Protection (Class XA) visa[5] to the applicant.
[1] “Tribunal”.
[2] “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 200-238.
[3] “Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 91-107.
[4] “Minister”.
[5] “Protection Visa”.
Application for Protection Visa
The applicant arrived in Australia on 8 March 2007 on a Student (Subclass 573) visa.[6] The applicant lodged an application for a Protection (Class XA) visa[7] on 30 August 2012.[8]
[6] “Student Visa”.
[7] “Protection Visa”.
[8] CB 1-65.
The applicant claimed:
a)to fear harm from Awami League members, the Bangladeshi authorities and criminals because of his:
i)actual or imputed political opinion in support of the Bangladesh Nationalist Party;[9] and
ii)membership of particular social groups comprising wealthy returnees and failed asylum seekers; and
b)his:
i)brother had been violently attacked by Awami League supporters; and
ii)father was unable to build on his land due to the contractors being threatened because his family were BNP supporters.[10]
[9] “BNP”.
[10] CB 36-40.
The Delegate’s Decision
The Delegate’s Decision refused to grant the applicant a Protection Visa.[11]
[11] CB 107.
Application to the Tribunal for review of the Delegate’s Decision
On 19 December 2012 the applicant lodged an application with the Tribunal for review of the Delegate’s Decision.[12] On 10 January 2013, the applicant was invited to attend a hearing scheduled for 15 February 2013 to give evidence and present arguments relating to his application for review.[13]
[12] CB 108-114.
[13] CB 118-120.
On 15 February 2013, the applicant attended the hearing and was represented by a migration agent.[14] The hearing was adjourned.[15] By letter dated 15 February 2013 the applicant was invited to attend a resumed hearing on 22 February 2013.[16] The resumed hearing proceeded on 22 February 2013, with the applicant’s migration agent again present.[17]
[14] CB 159-161.
[15] CB 161.
[16] CB 162-163.
[17] CB 168-169.
By letter dated 18 July 2013, the Tribunal invited the applicant to comment on or respond to identified inconsistencies and deficiencies in documentary evidence provided by the applicant.[18] Specifically, the Tribunal invited the applicant to comment on the authenticity of letters and membership cards provided in support of his application, as follows:
1.You provided a number of documents to support your claim to be a member and supporter of the BNP. The tribunal sought information to confirm the references provided as well as the authenticity of the membership cards and was provided with the following information:
A.In relation to the letter provided by Md.Shohidul Islam (Shohid), Senior Vice President of Jatiyatabadi Jubodal, Ward 94, BNP Kafrul in Mirpur, Dhaka. It was confirmed that he occupies the position claimed, but was advised that he is in jail. The Tribunal was also advised that it is unlikely any party member would approach a Senior Vice President for a reference letter while the President of the party still exists and remains active in his/her position. Under normal circumstances, according to seniority, the President would provide the reference letter not the Vice President. Therefore, the reference from the Vice President is an unusual case.
B.In relation to the letter provided by Jommadar Abdur Razzak, Organising Secretary, Ward 94 Nationalist Chatrodal. Jommadar Abdur Razzak is not the Organising Secretary of Nationalist Chatrodal and the information provided is false.
C.In relation to the membership cards, the BNP officially does not provide any ID cards to its members.[19]
[18] CB 184-185 (“18 July 2013 Letter”).
[19] CB 184.
The 18 July 2013 Letter explained why the information was relevant to the review and the possible consequences if the Tribunal relied on the information, as follows:
This information is relevant to the review because it may cause the tribunal to doubt the genuineness of your claim to be a member and supporter of the BNP as well as cause the tribunal to question the veracity of your overall claims.
If the Tribunal relies on this information in making its decision, it may decide you are not a credible witness and affirm the decision under review.[20]
[20] CB 184-185.
On 2 August 2013 the Tribunal granted the applicant an extension of time until 16 August 2013 in which to respond to the 18 July 2013 Letter.[21]
[21] CB 188.
The 18 July 2013 Letter was validly given to the applicant because it complied with the applicable statutory requirements set out in:
a)section 424A of the Migration Act – because it gave particulars of the information and outlined why it was relevant to the review;[22]
b)section 424B of the Migration Act – because it specified the way in which the comments were to be given (in writing), and that the comments were to be provided within the prescribed period);[23] and
c)section 441A(5) of the Migration Act – because it was faxed to the applicant’s authorised recipient at the last fax number provided to the Tribunal in connection with the review.[24]
[22] Migration Act, s.424A(1)(a) and (b).
[23] Migration Act s.424B(1)(b) and (2); Migration Regulations, reg.4.35.
[24] Migration Act, s.441A(5).
On 15 August 2013, the applicant, through his legal representative, provided a written response[25] to the 18 July 2013 Letter. The 15 August 2013 Letter:
a)provided an explanation as to why the letter was provided by the Senior Vice President of Jatiyatabadi Jubodal, rather than the President of the party, which related to their personal neighbourhood relationship;
b)insisted that the letter from the Organising Secretary of Ward 94 was genuine, and sought to submit various leaflets containing the Organising Secretary’s photo; and
c)confirmed that the BNP did not officially provide ID cards to their members, but that officials from the BNP issue registration documents to members who attend local events, and the relevant BNP registration document was one from when the applicant attended his local club.[26]
[25] CB 189-190 (“15 August 2013 Letter”).
[26] CB 189-190.
Tribunal Decision
The Tribunal Decision:
a)sets out the relevant law, including the law and policy, as to:
i)the relevant refugee criterion;
ii)the Ministerial direction in relation to policy guidelines under s.499 of the Migration Act;
iii)the complementary protection criterion;
iv)the applicant’s credibility and findings in relation to credibility; and
v)whether or not verbal threats can constitute serious harm within the meaning of s.91R of the Migration Act;[27]
[27] CB 212-215.
b)sets out the independent country information[28] referred to in the Tribunal Decision, including information on:
i)BNP membership documents;
ii)document fraud in Bangladesh;
iii)extortion or kidnapping of and in relation to Bangladeshi political groups and the families of politicians; and
iv)the treatment of BNP supporters generally, by Awami League Supporters, by security forces and by the present government;[29]
c)includes a lengthy summary of the application and evidence given at the Tribunal hearing;[30] and
d)sets out the Tribunal’s consideration of the applicant’s claims, the evidence and the Tribunal’s conclusions.[31]
[28] “ICI”.
[29] CB 216-223.
[30] CB 224-238.
[31] CB 201-211.
The Tribunal:
a)found that the applicant’s evidence was “inconsistent and conflicting” and his claims to fear harm in Bangladesh were not believable;[32]
[32] CB 202 at para.10.
b)was not satisfied that the applicant’s father had been prevented from building on his land for the claimed reasons and rejected all of the applicant’s related claims;[33]
[33] CB 203 at para.18.
c)did not accept that the Awami League would have the applicant arrested on false charges, because it found that the applicant did not have a profile as a BNP supporter that warranted such action being taken against him;[34]
[34] CB 203-204 at para.21.
d)did not give weight to the copies of the BNP membership cards belonging to the applicant and his brother in light of the information before it which indicated:
i)that the BNP did not provide membership cards; and
ii)the prevalence of document fraud in Bangladesh;[35]
[35] CB 204 at para.22.
e)did not accept the applicant’s explanation about the origin of the membership card, given it did not find the applicant to be a credible witness;[36]
[36] CB 204 at para.23.
f)found that the applicant’s evidence regarding his involvement with the BNP and its structure, policies and goals was “general” and “superficial”;[37]
[37] CB 204 at para.24.
g)accepted that the applicant’s father was involved in Jammat-e-Islami, but was not satisfied on the available evidence that the applicant would face harm for this reason, and placed weight on the applicant’s evidence that his father had not suffered any harm for this reason or publicised his involvement;[38]
[38] CB 204 at para.25.
h)found that the applicant’s credibility was undermined by the identified inconsistencies in his evidence to the Tribunal, the Delegate and a Departmental Compliance case officer about why he stopped studying and remained in Australia after his Student visa had ceased;[39]
[39] CB 204-205 at para.26.
i)did not accept the applicant’s explanation for his delay in applying for protection;[40]
[40] CB 205 at para.27.
j)did not give any weight to letters provided by the applicant because their contents were inconsistent with his oral evidence at the Tribunal hearing;[41]
[41] CB 205 at para.28.
k)did not give any weight to his brother’s medical documents as they did not identify the claimed attackers, or his brother’s statement that he was attacked by Awami League members, because it found that his brother had organised and obtained all of the corroborative evidence, and aspects of the statement were inconsistent with the applicant’s oral evidence at the hearing. Accordingly, the Tribunal was not satisfied that the applicant’s brother was attacked by members of the Awami League or that the attack was politically motivated;[42]
[42] CB 205-207 at paras.29-37.
l)found that the applicant was a “very low profile supporter” of the BNP;[43]
[43] CB 207 at para.39.
m)was not satisfied that the applicant intended on being involved in politics in Bangladesh in the future;[44]
[44] CB 207 at para.39.
n)accepted that the applicant and his family supported the BNP, but found the applicant did not have political interests or commitment beyond that of an “ordinary educated citizen” and would not be perceived as having any political profile;[45]
[45] CB 207-208 at para.39.
o)found that both the applicant’s brother and father were low profile supporters of the BNP, and did not have the political connections they were claimed to have;[46]
[46] CB 207-208 at para.39.
p)acknowledged the ICI before it regarding political violence in Bangladesh, but was not satisfied that:
i)it demonstrated that the applicant would be harmed simply because he was a supporter of a particular political party;
ii)the applicant would face false charges or be kidnapped because he supported the BNP; or
iii)the applicant had a profile as a political activist or as a family member of a high profile political activist which would expose him to a real chance of serious harm,
and, therefore, found that the applicant did not face a real chance of harm from the Awami League or the Bangladeshi authorities for a Convention reason;[47]
q)accepted on the basis of the available ICI that security problems existed in Bangladesh and families of wealthy businessmen were targeted for kidnapping and extortion but was not satisfied that the applicant was wealthy, belonged to a wealthy family or would be perceived as such on his return to Bangladesh, and, therefore, found that he would not face a real chance of harm due to his prolonged period of stay in Australia;[48]
r)was not satisfied that the applicant had a high political profile, and was, therefore, also not satisfied on the available evidence that the applicant would face harm due to his status as a failed asylum seeker who had spoken out against the government;[49] and
s)reached its findings on the basis of its assessment of the credibility of the applicant’s claims and evidence, as well as its assessment of the available ICI.
[47] CB 208 at para.40.
[48] CB 208-209 at paras.41-43.
[49] CB 209 at para.45.
On the above bases the Tribunal was not satisfied that the applicant had a well-founded fear of persecution.[50] On the same bases, the Tribunal was also not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm because of his actual or imputed political opinion, actual or perceived status as a wealthy returnee or status as a failed asylum seeker.[51]
[50] CB 209 at para.46.
[51] CB 209-210 at paras.49-51.
Ground of review
There is one ground of review in the application, namely, that:
The tribunal assessor failed to consider all my claims properly.
No particulars are provided, and there is no explanation as to which aspects of the applicant’s claims the Tribunal allegedly did not consider.
Consideration
Without particulars, the sole ground is not meaningful, and the application therefore fails to raise an arguable case for the relief claimed. Contrary to orders made by the Court the applicant did not file any written submissions prior to hearing, and therefore no further elaboration of the sole ground was made before the day of hearing. The applicant’s oral submissions at hearing took the matter no further: Essentially, they complained that the Tribunal took his complaints too “lightly” and that his documents and submissions were not given “enough weight”.
Read literally, the ground of review does not assert that the Tribunal failed to consider any of the claims made, or any integers of the claim made. It is not, in that sense, a ground of review to which the principles in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs[52] apply. Even if a Dranichnikov type claim had been made, it would not have succeeded, because the Tribunal set out and understood each of the claims made by the applicant, and thus having identified each of the claims, considered each claim. The Tribunal did so in considerable detail in its summary of the application for protection and Tribunal hearing at Attachment C to the Tribunal Decision,[53] and considered each of the claims made under the headings of “Assessment of claims”, “Political and imputed political claims”, “Wealthy returnee” and “Failed asylum seeker”, and additionally considered the issue of complementary protection.[54]
[52] (2003) 77 ALJR 1088; [2003] HCA 26 (“Dranichnikov”).
[53] CB 224-237.
[54] CB 201-210 at paras.8-53.
The use of the word “properly” in the ground of review rather seems to suggest that the applicant disagrees with the manner in which the Tribunal considered his claims. That was confirmed by the applicant’s submissions at hearing, as set out above.[55] This ground, therefore, amounts to no more than an impermissible invitation for the Court to review the merits of the Tribunal Decision. In an application for judicial review an applicant must identify a jurisdictional error, and it is not the role of the Court to reconsider or redetermine the merits of the matters determined by the Tribunal.[56] It is not for this Court on judicial review to re-weigh the evidence before the Tribunal, which was the implicit thrust of the applicant’s submissions.[57] Attributing different weight to the evidence would involve this Court in impermissibly reviewing the factual findings, and therefore slipping into impermissible merits review, rather than examining the process by which the Tribunal arrived at its conclusions, which is the proper function of judicial review.[58] Error of fact alone, and mere disagreement with findings of fact, or the weight given to matters, does not constitute jurisdictional error. Without jurisdictional error, the power of this Court to intervene and grant relief in respect of the Tribunal Decision is not enlivened.[59]
[55] See para.17 above.
[56] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
[57] Minister for Immigration & Citizenship v SZJSS & Ors (2010) 243 CLR 164 at 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 48 at para.35 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. (“SZJSS”).
[58] SZJSS CLR at 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.36 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[59] Migration Act, s.474; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; SZDFZ v Minister for Immigration & Anor (2008) 168 FCR 1 at 11 per Flick J; [2008] FCA 390 at para.40 per Flick J.
The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant.[60] The findings of fact made, including the assessment of the applicant’s credibility, and the credibility of his claims, and the Tribunal’s inability to be satisfied of the applicant’s claims, were open findings on the evidence before the Tribunal, for the reasons set out in the Tribunal Decision.[61] The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[62] The applicant might disagree with the Tribunal’s factual findings, but those findings reveal no jurisdictional error.
[60] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J.
[61] Wu Shan Liang & Ors at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[62] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
There is nothing in the sole ground of review which lends itself to an inference that the Tribunal acted unreasonably in the sense referred to in Minister for Immigration & Citizenship v Li[63] or that there was anything illogical or irrational about the Tribunal Decision in the sense referred to in Minister for Immigration & Citizenship v SZMDS & Anor.[64]
[63] (2013) 87 ALJR 618; [2013] HCA 18.
[64] (2010) 240 CLR 611; [2010] HCA 16.
In all of the above circumstances, the applicant has failed to make out the sole ground of review. No jurisdictional error has been established.
Conclusions and orders
The Court has concluded that the applicant’s ground of review must fail for it identifies no jurisdictional error in the Tribunal Decision. It is therefore a privative clause decision, not amenable to review by this Court.[65] The application must therefore be dismissed. There will be an order accordingly.
[65] Migration Act, s.474.
The Court will hear the parties as to costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 7 March 2014
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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Natural Justice
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Procedural Fairness
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Standing
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