FEDERAL COURT OF AUSTRALIA

SZVRS v Minister for Immigration and Border Protection [2016] FCA 1292

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia in which the primary Judge dismissed an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (the Migration Act). The application related to a decision of the Administrative Appeals Tribunal (the Tribunal) made on 23 October 2014 affirming a decision of the delegate of the Minister to refuse the appellant a Protection (Class XA) visa under the Migration Act.

2    Before turning to the grounds of appeal before the Court it is useful to examine the background facts, and in particular the decisions of the Tribunal and his Honour below.

Background facts

3    The appellant is a citizen of Bangladesh, born in the Mirsarai District, Chittagong. He first arrived in Australia on 22 June 2012 on a work and holiday visa, valid until 22 June 2013. He departed Australia on 18 April 2013, returned on 12 May 2013, and applied for a protection visa on 20 June 2013.

4    The appellant claims that he is a Hindu, and was involved in promoting the Hindu religion through his involvement in the organisations Sanatan Sango and the Hindu Buddhist Christian Unity Council. He also claims that he and his family were involved in promoting Hinduism in his area in Bangladesh to prevent Hindus converting to Islam.

5    In the Tribunal he claimed that he would be killed on return to Bangladesh by members of Jamaat-e-Islami, Hefazate Islam and the BNP, on the basis of:

    his Hindu religion;

    his membership of a particular social group, namely as a Hindu family involved in promoting Hinduism; and

    his imputed political opinion against parties passively or actively promoting Islam as the state religion.

6    The appellant was interviewed by the Department of Immigration and Border Protection on 27 November 2013. The delegate refused to grant the visa on 2 December 2013 on the basis that the applicant would not face a real chance of persecution or a real risk of complementary protection for the reasons he claimed if he were to return to Bangladesh.

Decision in the Tribunal

7    The appellant sought review of the decision of the Minister’s delegate and appeared before the Tribunal on 9 October 2014, where he was represented by a registered migration agent and assisted by an interpreter.

8    In summary, the Tribunal found the following:

    There were aspects of the appellant’s claimed circumstances which the Tribunal accepted as true, including his educational qualifications, religion, village of origin, family composition and career aspects.

    However the Tribunal did not accept the appellant as a credible witness, or accept that he had suffered the harm in his country that he claimed for the reasons he claimed.

    The appellant’s testimony was inconsistent and implausible amounting to a fabrication. For example:

○    the Tribunal rejected the appellant’s claims that his village had been attacked by Muslim extremists and that he was harmed in the manner he claimed because he was a Hindu and personally for his claimed activities and profile;

○    while the Tribunal accepted that applicants can become confused in respect of dates of events, it expected the appellant would be consistent in his evidence as to when his village was attacked. His inconsistency in this respect added to the Tribunal’s finding of lack of credibility in the appellant;

○    the appellant’s evidence of rioting in his village at the dates he nominated, referable to certain events, was implausible, and inconsistent with media reports;

○    the appellant’s evidence in respect of physical treatment of him (namely that he was slapped in a particular instance) was inconsistent with his previous evidence at the Department interview and in his statement (namely that he was beaten with sticks);

○    the appellant provided vague and confusing evidence as to how long he stayed in his home village on his return to Bangladesh in 2013;

○    he gave evidence before the Tribunal that he at one point stayed at his aunt’s place, when before the Tribunal he stated that he had no aunts.

    The appellant was inconsistent in his evidence in respect of an important incident in 2011.

    The appellant’s evidence in respect of his Hindu practice in Australia was inconsistent.

    The appellant’s evidence concerning his involvement in Sanatan Sango and Bangladesh Hindu Buddhist Christian Unity Council was inconsistent.

    The appellant did not raise in his initial statement his alleged involvement in a demonstration at the Goboinath Temple in Mirsarai in Bangladesh.

    The Tribunal did not accept the appellant’s claim of his “strong involvement in promoting the rights of Hindus, protecting Hindus and Hindu activism” in circumstances where the appellant lacked knowledge of the aftermath and difficulties faced by Hindus in March and April 2013.

    The appellant’s claim that his family had a special involvement in the organisation of Hindu festivals was unpersuasive.

    The appellant’s delay in applying for refugee status was not persuasively explained by him.

    Due to inconsistent information that was given in relation to the appellant’s alleged harm he has received in Bangladesh and that he may suffer on his return to Bangladesh, the Tribunal did not accept all of his claims, particularly the claim about the alleged attack on him in 2011 and the alleged attack on his village in 2013.

9    Overall, the Tribunal held that the appellant had fabricated his claims and concocted evidence to achieve a migration outcome, and found that he was not a credible or truthful witness. As a result, the Tribunal did not accept that the appellant would be persecuted were he to return to Bangladesh in the reasonably foreseeable future because of his profile and special activities promoting Hindu religion and engaging in Hindu activism, or because he was part of a family involved in promoting Hindu.

10    The Tribunal also considered available country information regarding Hindus and societal violence in Bangladesh. The Tribunal found that that information did not support a finding that the appellant would face a real chance of persecution involving serious harm were he to return to Bangladesh in the reasonably foreseeable future.

11    Finally the Tribunal considered whether the appellant met the protection obligations under the complementary protection provisions of the Migration Act. In light of its findings, the Tribunal concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh, there was a real risk that he would suffer significant harm as defined in s 36(2A) of the Migration Act.

12    Accordingly, the Tribunal affirmed the decision of the Minister to refuse the appellant’s protection visa.

Federal Circuit Court

13    The appellant sought review of the Tribunal’s decision in the Federal Circuit Court on the following grounds:

1.    The Tribunal failed to comply with the requirements of section 424A or 424AA of the Migration Act 1958 in conducting its review of the case.

Particulars

The Tribunal’s decision was based wholly or in part on information which the Applicant had provided to the Minister’s delegate orally. That information was not exempt from the requirements of s424A but the Tribunal failed to comply with either s424A or 424AA in respect of that information.

14    The primary Judge accepted the submissions of the first respondent and held that there was no breach of the requirements of s 424A and no jurisdictional error for the claim alleged in ground (1) of the application [50]. Further, the Judge held that there was no information that enlivened any obligation under s 424A and accordingly no error as alleged was made out. The primary judge made these findings for – in summary – the following reasons:

    It was open to the Tribunal to find that the appellant’s oral evidence given at the interview with the delegate went to his credibility because of its inconsistency with the evidence provided at the hearing. In taking this oral evidence into account, the Tribunal’s conduct did not enliven an obligation under s 424A [48].

    To the extent that the Tribunal purported to embark upon complying with s 424AA – that is, getting information orally which it considers relevant, but then having regard to that information in making the decision on the review – that does not determine whether the information is, in fact, of a kind that enlivens the obligation under section 424A [48].

    No obligation under s 424A was enlivened in relation to the information relied upon by the solicitor for the appellant [49].

15    There was a question raised about whether certain material was ‘information’ to which s 424A and s 424AA apply. Namely, the complaint surrounded the statement by the Tribunal member, “don’t give me more country information” and whether this affected compliance with s 424AA(1)(b). In relation to this matter, the Judge held:

    The Tribunal complied with its obligations under s 424AA [57].

    The Tribunal did not limit the scope of what the appellant could raise [58].

    The appellant had a genuine hearing as the applicant was represented by a migration agent and that there can be no breach of s 425 of the Migration Act [59].

Appeal to the Federal Court

16    The appellant appealed from the decision of the Federal Circuit Court on the following grounds:

Grounds of appeal

1.    The Second Respondent failed to provide an opportunity to the applicant in accordance with the provision of the s424AA(1)(b) (iii) to (iv). The Court below erred to determine the constructive failure of the Second Respondent.

2.    The Second Respondent made irrelevant consideration, besides the Second Respondent's decision based on misconception particularly of credibility findings. The court below erred in deciding this issue.

3.    The decision of the Second Respondent was not fair as the Respondent did miss or did not ask any question of the applicant's returning to home country, where Hindu minorities are subject to oppression by the mainstream community. Besides, the Second Respondent did not allow any further country information due to the Respondent set up its mind before hearing, thus the Second Respondent made error which was not given weights by the Court below.

17    The appellant sought the following orders:

1.    An order that appeal be allowed.

2.    An Order of Federal Circuit Court set aside.

3.    A writ of certiorari issue to remove to this Honourable Court and quash the decision of the Tribunal.

4.    A writ of mandamus issue directing the Tribunal to determine according to law and the appellant's application before the Tribunal.

5.    An order that the respondent pay the appellant's costs of the Appeal and the proceedings in the Federal Circuit Court.

6.    Such further or other order as the Court thinks fit.

Submissions of the parties

18    The appellant appeared in person at the hearing of the appeal. He relied on written submissions which I directed he file after the hearing, and made no oral submissions.

19    Relevantly the appellant submitted that there were three issues in the appeal, as follows:

a.    The Second Respondent failed to provide an opportunity to the applicant in accordance with the provision of the s424AA (1)(b) (iii) to (iv). The Court below erred to determine the constructive failure of the Second Respondent.

This issue is not fully constructed by the Court below. The appellant involvement was to develop the Hindu religion and the appellant activities were significant in campaigning the religious ideology. These activities were not adequately determined at the Court below. The Second Respondent did not pay attention to the corroborative evidences. Besides, the Second Respondent failed to inform the appellant the information which the Second Respondent relied on or particularly disregard the section 424AA.

b.    The Second Respondent made irrelevant consideration, besides the Second Respondent’s decision based on misconception particularly of credibility findings. The court below erred in deciding this issue.

The Second Respondent was highly influenced by the country information. This information regarding fraudulent documents not about the minority oppression. The documents which were submitted to the tribunal were not verified or any investigation or any sort of procedure in finding the truth. As such it is relevant in saying that the Second Respondent did consider the irrelevant consideration in determining the credibility issue incorrectly with misconception.

c.    The decision of the Second Respondent was not fair as the Respondent did miss or did not ask any question of the applicant’s returning to home country, where Hindu minorities are subject to oppression by the mainstream community. Besides, the Second Respondent did not allow any further country information due to the Respondent set up its mind before hearing, thus the Second Respondent made error which was not given weights by the Court below.

The appellant is contending that the country information suggest minority Hindhu is also subject of the terrors and a number of incident happened in Bangladesh by the terrors. Before determining the case, the Second Respondent denied relevant information. It may be presumed that the Second Respondent took decision previously that’s why the Second Respondent denied receiving further country information.

(errors in original.)

20    Counsel for the Minister submitted, in summary, that:

    The appellant’s first ground of appeal was a repetition of the sole ground of review before the primary Judge, and should be rejected for the same reasons as given by the primary Judge at [49]-[59] of his Honour’s judgment.

    The second ground of appeal was an unparticularised complaint about consideration of unidentified irrelevant material and allegedly misconceived credibility finding by the Tribunal.

    The third ground of appeal was unclear and the allegations made were incorrect.

Consideration

21    In respect of the first ground of appeal, no contravention of either s 424A or s 424AA of the Migration Act by the Tribunal has been established.

22    As the High Court found in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, obligations in s 424A of the Migration Act apply to material that directly and in its terms constitutes or contains a rejection, denial or undermining of an applicant’s claims to meet the relevant visa criteria. Section 424A is not enlivened by questions or material put by the Tribunal to an applicant which go to the applicant’s credibility because of doubts, inconsistencies with other evidence or the absence of evidence.

23    In this case it appears that the Tribunal asked questions of the appellant during the course of the hearing. This procedure does not, of itself, engage s 424A. Rather, it is anticipated and permitted by s 424AA of the Migration Act, and is referable to the inquisitorial function of the Tribunal.

24    The primary Judge found that the material relied on by the appellant in relation to this ground of appeal went to his credibility in the Tribunal – in particular the evidence provided by the appellant as to whether he was handing out pamphlets for an upcoming festival or at the festival when a relevant incident in 2011 occurred, whether he was slapped or pushed in a relevant series of events, and whether he was threatened through his father or directly (at [47]).

25    Insofar as concerns s 424AA of the Migration Act, the obligations of the Tribunal in communicating its approach to questioning the applicant and eliciting information from the applicant are set out in s 424AA(1)(b). The decision record of the Tribunal indicates that the Tribunal member, in her questioning of the appellant during the hearing, pointed out to the appellant inconsistencies in his evidence and invited him to address those inconsistencies in compliance with the statutory provision (for example, Tribunal Decision Record [40], [41], footnote 2, [45], [53], [57]).

26    Further, I consider that the complaint of the appellant in respect of the manner in which the Tribunal assessed his answers during the hearing reflected his discontent with the Tribunal’s rejection of those answers rather than any flaw in the Tribunal’s conduct of the hearing.

27    In respect of the second ground of appeal, it is well-settled that credibility findings are findings of fact, properly the remit of the Tribunal in such cases: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423. Further, it is proper for the Tribunal to have regard to country information and accord it such weight as the Tribunal considers appropriate: VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 at [63].

28    In respect of the third ground of appeal the appellant seems to contend that the Tribunal was biased in its assessment of his case. An allegation of bias is a serious matter which must be specifically pleaded, and indeed no bias should be inferred solely from factual findings which were open to the Tribunal on the material before it: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]).

29    The allegation of bias in the Tribunal appears to relate to a comment of the Tribunal member during the course of the hearing to the effect of “don’t give me more country information”. This issue was, however, addressed in some detail by the primary Judge at [51]-[56]. As his Honour observed, the comment was made in circumstances where:

    the appellant had already provided very lengthy country information to the Tribunal;

    the appellant was represented;

    no objection to the comment of the Tribunal member was made by the appellant’s representative at the time;

    the appellant had already been provided with an opportunity to provide further submissions in writing; and

    it was clear that the Tribunal member was attempting to direct the appellant and his representative to focus on the case from a case management perspective.

30    In my view the findings of his Honour should remain undisturbed.

Conclusion

31    In my view the appeal should be dismissed. No reason has been advanced why costs should not follow the event, and I propose to make an order accordingly.

Associate:

Dated:    2 November 2016