FEDERAL COURT OF AUSTRALIA

SZQES v Minister for Immigration and Citizenship [2012] FCA 126

THE COURT ORDERS THAT:

1.    The appeal be 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

INTRODUCTION

1    This is an appeal from a judgment of a Federal Magistrate (SZQES v Minister for Immigration and Citizenship [2011] FMCA 876) in which the Federal Magistrate dismissed the appellant’s application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the first appellant a Protection (Class XA) visa (“Protection visa”).

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); SZQES v Minister for Immigration and Citizenship [2011] FMCA 876.

3    The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

4    For the reasons that follow, I have determined to dismiss the appeal.

BACKGROUND

5    The appellant is a male citizen of Bangladesh who arrived in Australia on 8 June 2010. On 21 June 2012, with the aid of a representative, the appellant lodged an application for a Protection visa with the Department of Immigration and Citizenship (“the Department”) on the grounds that he feared persecution in Bangladesh based on his involvement in the Bangladesh Nationalist Party (BNP). The appellant’s claims included that:

    between 1996 and 2000 he had been involved in the student wing of the BNP, the Jatiyatabadi Chhatra Dal (“the JCD”), as a student leader, and he was arrested and tortured in custody for his political activities;

    in 2000 he joined the BNP and was involved in protests and leading processions and was targeted and attacked on a number of occasions by cadres from the politically opposed Awami League (“AL”);

    on 1 February 2005 he was attending a BNP procession and was targeted by AL cadres who threatened his life and warned him to leave Bangladesh (“the 1 February 2005 incident”);

    he subsequently decided to leave Bangladesh and moved to Singapore in 2005; and

    he returned to Bangladesh in 2009 to visit his wife and family but did not feel safe at his home village and his family began receiving threatening phone calls.

6    The appellant attended an interview with a delegate of the Minister (“the delegate”) on 13 October 2010 and was assisted by an interpreter. On 2 December 2010 the delegate refused the appellant’s application for a Protection visa on the basis of significant inconsistencies between the appellant’s oral and written claims about the alleged attacks he said he had suffered.

7    On 24 December 2010 the appellant filed an application in the Tribunal for review of the delegate’s decision. The appellant appeared at a hearing before the Tribunal on 4 March 2011 assisted by his representative and an interpreter. The Tribunal found that:

    the appellant’s claims were difficult to believe as they did not match up with the available country information of the political situation in Bangladesh;

    the appellant’s written claims regarding grenade attacks at rallies he attended in August 2004 and January 2005 appeared to have been direct copies from a BBC chronology of key events for Bangladesh;

     there were significant gaps between what he had said at the interview and what he said at the Tribunal hearing, including as to whether, when, and how many times his house had been ransacked;

    the appellant was not a credible witness, was evasive when directly questioned about his claims and was willing to alter his evidence when attempting to deal with the highlighted inconsistencies;

    given the appellant’s lack of political activity in Bangladesh in the last five years, the Tribunal was not satisfied that he suffered a reasonable risk of persecution if he returned to Bangladesh; and

     the fact that the appellant had returned to Bangladesh in 2009 cast doubt on his claimed fear of being persecuted.

8    The Tribunal considered the appellant’s claims but due to its adverse credibility findings, the Tribunal did not accept that the appellant was involved in the JCD or the BNP in Bangladesh, nor did it accept that any of the subsequent attacks he claimed to have experienced from being involved in political activities had actually occurred. On 5 April 2010 the Tribunal affirmed the delegate’s decision under review not to grant the appellant a Protection visa.

THE FEDERAL MAGISTRATE’S DECISION

9    On 29 April 2011 the appellant lodged an application for review in the Federal Magistrates Court. He relied on an amended application which set out the following grounds:

1.    The Tribunal based its decision on the understanding that the applicant told the Minister’s delegate at an interview on 13 October 2010, that his home had been attacked twice, in August 2004 and on 1 February 2005. In fact, the applicant told the Minister’s delegate at the interview on 13 October 2010 that his home had been attacked once and not twice. In the circumstances, the Tribunal misled the applicant, resulting in jurisdictional error, and based its decision on a fact when there was no evidence to support the fact, resulting in jurisdictional error.

2.    An aspect of the applicant’s claims not dealt with by the Tribunal was that the applicant was a member of the BNP who faced a real chance of persecution if required to return to Bangladesh. The Tribunal fell into jurisdictional error by not dealing with this aspect of the applicant’s claims.

10    Essentially, the first ground had two limbs: that the Tribunal misled the appellant thus denying him procedural fairness; and, that that the Tribunal’s findings were made on the basis of no evidence. In dealing with the ground of appeal before this Court I will later describe the way in which the Federal Magistrate determined the first ground.

11    In relation to ground two, the Federal Magistrate found that the Tribunal did address the appellant’s claims of persecution for being a BNP member, including: his claimed fear of being arrested or gaoled because of a false case; and also the claim that he would be killed by the AL cadres because of his “involvement” in the BNP. At [62]-[65] the Federal Magistrate outlined the appellant’s submissions in relation to ground two. At [66] the Federal Magistrate stated she was satisfied that, on a fair reading of the Tribunals reasons for decision as a whole, any claim of the appellant based on his BNP membership was properly dealt with and disposed of. The Federal Magistrate noted that the appellant’s claim was not merely that he feared persecution for being a member of the BNP, but that it was based on his claim of being an “active” member of the BNP and having a leading role in the party. The Tribunal had accepted that he had joined the BNP in 2000 and such fact was implicit throughout the Tribunal’s findings. The Federal Magistrate also noted at [67] that the Tribunal had concluded that the appellant was not a witness of truth and that this finding outweighed any documentary evidence of party membership. Further, the Federal Magistrate noted that the Tribunal had found the appellant’s claims were further undermined by the fact that he had returned to Bangladesh in 2009 although his claimed fear of persecution was a result of his BNP activities since about 2005.

12    The Federal Magistrate found that the Tribunal addressed the appellant’s claims of feared persecution because of his involvement with the BNP including any claims arising squarely on the material before the Tribunal. At [66], her Honour was satisfied that the Tribunal’s reasons adequately disposed of all of the appellant’s claims of membership and involvement with the BNP. At [72] the Federal Magistrate was satisfied the Tribunal reasons adequately dealt with the claim that the applicant was a member of the BNP who faced a real chance of persecution if required to return to Bangladesh, consistent with the fact that the Tribunal did not accept that there was a real chance that the applicant would become involved in political activity if he returned to Bangladesh now or in the reasonably foreseeable future. On 15 November 2011 the Federal Magistrate dismissed the appellant’s application for review with costs.

GROUNDS OF APPEAL IN THIS COURT

13    On 2 December 2011, the appellant filed a notice of appeal in this Court which contained the following stated grounds of appeal:

1.    The Tribunal based its decision on the understanding that the applicant told the Minister’s delegate at an interview on 13 October 2010, that his home had been attacked twice, in August 2004 and on 1 February 2005. In fact, the applicant told the Minister’s delegate at the interview on 13 October 2010 that his home had been attacked once and not twice. In the circumstances, the Tribunal:

a.     misled the applicant, resulting in a denial of procedural fairness and jurisdictional error, and

b.    based its decision on a fact when there was no evidence to support the fact, resulting in jurisdictional error.

The Federal Magistrates Court erred in failing to find that the Tribunal fell into jurisdictional error on this basis.

14    The appellant’s grounds of appeal were not particularised. Despite orders made on 5 December 2011 allowing the appellant to file and serve written submissions 10 clear working days before the hearing date (by 7 February 2012), none were filed or served. At the hearing on 21 February 2012 the appellant was self-represented and assisted by an interpreter.

15    The appellant relied on written submissions handed to the court. In those written submissions, the appellant complained that the Tribunal failed to provide him time in which to provide the Tribunal documents relevant to his claims, and that the Tribunal failed to take into account those documents. This is a new ground of appeal which was not agitated before the Federal Magistrate.

RAISING NEW GROUNDS OF APPEAL

16    The principles regarding the raising of new grounds of appeal were the subject of detailed consideration in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11] (Flick J). Leave should only be granted to raise new grounds on appeal where it is expedient in the interests of justice. For a ground to be argued and determined for the first time on appeal, it must at least be shown that the ground has a reasonable prospect of success.

THE APPELLANT’S GROUNDS OF APPEAL

17    In relation to the new ground of appeal referred to above, I note that the applicant was provided with an opportunity to participate in the Tribunal hearing and provide arguments and documentary evidence in support of his claims. The applicant had twice applied for, and the Tribunal had granted, an extension of time of two weeks in order for the applicant to file documentary evidence relevant to his claims. The first such extension of time was granted on 4 March 2011, and the second extension was granted on 17 March 2011. Having afforded the applicant these opportunities, the Tribunal was under no obligation to provide a further extension of time, applied for by the applicant on 30 March 2011, and the Tribunal’s refusal does not amount to a jurisdictional error.

18    For the above reasons, there is no reasonable prospect of success in relation to this new ground of appeal agitated at the hearing. On this basis, I have determined to deny leave for the applicant to raise the new ground of appeal.

19    The ground of appeal stated in the notice of appeal filed in this Court, had been agitated before the Federal Magistrate and rejected. Before the Federal Magistrate, the appellant argued that the Tribunal had misled the appellant and made a credibility finding against him without an evidentiary basis. That was said to be so because the Tribunal had mischaracterised evidence given by the appellant at his interview with the Minister’s delegate on the subject matter of attacks upon the appellant’s home.

20    The appellant relied upon a written point form summary of the delegate’s account of the interview with him as evidence of what the appellant had said at the interview on the subject of attacks upon his home. That document records that the appellant referred to only one attack on his home and that the evidence given by the appellant was initially that the ransacking and attack on his home occurred in August 2004 but that later in the interview the appellant claimed it had occurred on 1 February 2005.

21    At the hearing before the Tribunal, the appellant initially referred to his home being attacked once in August 2004 or August 2005. The Tribunal put to the appellant that this was inconsistent with the evidence he gave at the interview with the Minister’s delegate where he had stated that his home had been attacked twice. After some further discussion, the appellant said that “most probably” there had been two incidents, in August 2004 and on 1 February 2005.

22    Although it was not the only basis for the Tribunal’s view that the appellant lacked credibility, by its findings, the Tribunal determined that the evidence given by the appellant about the attacks on his home demonstrated his willingness to alter his evidence to attempt to address the problems raised by the Tribunal with the appellant.

23    Before the Federal Magistrate, the appellant contended that the Tribunal was wrong to have asserted to him that he had claimed at the interview with the delegate that his home was attacked twice because that was not the fact. To prove that fact, the appellant sought to rely upon the written summary prepared by the Minister’s delegate of the interview with the appellant.

24    The Federal Magistrate was not satisfied that the appellant had established that in the interview with the delegate the appellant had not in fact claimed that his home had been attacked twice. As the Federal Magistrate noted, there was a conflict between the delegate’s account recorded in the delegate’s summary and the account of the Tribunal Member who had listened to the digital voice recording of the interview. The reasons for decision of the Tribunal set out in greater length, than does the summary prepared by the delegate, what the Tribunal understood to have been said in the interview with the delegate.

25    The Federal Magistrate took the view that the appellant bore the onus of establishing jurisdictional error. The discharge of that onus required the appellant to establish the fact that the Tribunal’s account of what had occurred at the interview was incorrect. The Federal Magistrate was of the view that in the absence of evidence such as the transcript of the interview, the voice recording of the interview or evidence from the appellant as to what he had said at the interview, there was no sufficient evidentiary basis upon which the Federal Magistrate could be satisfied that the Tribunal had misstated what the appellant had said at the interview.

26    There is no legal error in the analysis made by the Federal Magistrate. The starting point for establishing either that the Tribunal had misled the appellant or had acted without evidence, was the need for the appellant to establish what in fact had been said at the interview with the delegate. The appellant was legally represented before the Federal Magistrate. As the Federal Magistrate states, the appellant had been provided with a digital recording of the interview with the delegate. The appellant bore the onus of establishing what had happened at the interview. He failed to discharge that onus and the Federal Magistrate was right to have so found.

27    The Federal Magistrate also rejected this ground on the alternative basis that the conduct alleged, even if proven, did not constitute jurisdictional error. Given the view I have taken as to the primary basis for the rejection of this challenge by the Federal Magistrate, I need not deal with the alternative basis relied upon by the Federal Magistrate.

DISPOSITION

28    For the reasons given above, I am satisfied that the decision of the Federal Magistrate is not infected with appealable error. Therefore, the appeal must be dismissed. The appellant should pay the Minister’s costs of the appeal. I will make orders to that effect.

Associate:

Dated:    23 February 2012