FEDERAL COURT OF AUSTRALIA

SZSRZ v Minister for Immigration and Border Protection [2014] FCA 106

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Leave be granted to file in court the affidavit of Sharon Anne Burnett sworn 18 February 2014.

3.    The appellant pay the first respondent’s costs fixed in the amount of $2,500.

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

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT)

1.    Introduction

1    This is an appeal against the judgment of the Federal Circuit Court of Australia (“the Court below”) in SZSRZ v Minister for Immigration and Border Protection [2013] FCCA 1624 dismissing the appellant’s amended application for constitutional writs in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) given on 28 February 2013. The Tribunal had affirmed the earlier decision made on 17 July 2012 by a delegate of the first respondent (“the Minister”) to refuse to grant the appellant a protection visa (Class XA) under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2    The notice of appeal filed on 30 October 2013 contains only one ground of appeal alleging a breach of the rules of natural justice. No written submissions were filed prior to the hearing by the appellant that elaborated upon the ground, although submissions were filed by the Minister. However, at the hearing below and at the hearing of the appeal before me, the appellant’s submissions on the procedural fairness ground focused upon the Tribunal’s use of information obtained from British authorities as to the appellant’s use of a passport under an assumed name. That information played a significant role in the Tribunal reaching an adverse view as to the appellant’s credibility which in turn led it to reject his claims. However, for the reasons set out below, I do not consider that any breach of procedural fairness is established. The Tribunal correctly followed the statutory procedures prescribed by s 424AA of the Act in accordance with its obligation under s 424A to provide the appellant with an opportunity to respond in an informed way to that adverse information, as the Court below held.

3    I also note that the appellant was unrepresented on the appeal, as he was in the court below. Notwithstanding the identified ground of appeal, the appellant’s oral submissions on the appeal largely focused upon the merits of his claim for a protection visa. It is important, however, to stress at the outset that this Court’s jurisdiction on appeal from the Federal Circuit Court of Australia (“FCCA”) under s 24 of the Federal Court of Australia Act 1976 (Cth) is concerned with the correctness of the decision of the FCCA. The FCCA, in turn, is seized with jurisdiction under s 476 of the Act. That jurisdiction is the same as that vested in the High Court under s 75(v) of the Constitution, and is limited to a consideration only of the legality of the decision by the Tribunal refusing to grant the appellant a visa, that is, whether the decision of the Tribunal is tainted by jurisdictional error. As explained by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179, jurisdictional error in the context of an administrative tribunal such as the Refugee Review Tribunal is established where, for example, the tribunal:

“…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely upon irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.”

4    Accordingly, neither this Court nor the FCCA has power to undertake a review of the merits of the Tribunal’s decision to refuse to grant the appellant a protection visa or to otherwise grant the appellant a visa.

2.    Background

5    The appellant is a citizen of the People’s Republic of Bangladesh. He arrived in Australia on 14 February 2012 on a temporary business visa issued in Bangladesh on 31 January 2012 and valid to 13 March 2012.

6    On 8 March 2012, the appellant applied to the Minister under s 65(1) of the Act for a protection (Class XA) visa, at which point a Bridging A (Class WA) visa was granted to him. The Minister has power to delegate that power under s 496(1) of the Act. The criteria for the grant of a protection visa are contained in s 36(2) of the Act which provides that:

“A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;”

7    As to the first criterion, article 1A(2) of the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); [1954] ATS 5, as amended by the Protocol relating to the Status of Refugees, opened for Signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967); [1973] ATS 37, defines a ‘refugee’ relevantly as a person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;”

8    However, even where the Minister is not satisfied that the non-citizen is owed protection obligations under the Refugees Convention, the person will be entitled to the grant of a protection visa if the Minister is satisfied that Australia has protection obligations because of the real risk that the person may suffer “significant harm” if returned in accordance with s 36(2)(aa) (the “complementary protection provision”). The phrase “significant harm” is defined exhaustively by s 36(2A): SZRPT v Minister for Immigration and Border Protection [2014] FCA 24, [4] (Katzmann J). As a consequence, the complementary protection provision applies only where the risk is of conduct that will arbitrarily deprive a non-citizen of his or her life, or subject the non-citizen to torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment, and is intended to implement Australia’s non-refoulement obligations under various international human rights conventions including the International Covenant on Civil and Political Rights, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 23 March 1976); [1980] ATS 23.

9    The appellant claimed to fear persecution if returned to Bangladesh from the Awami League based, in particular, upon his service for a one year term as a Vice President of the Bangladesh Jatiotabadi Jubo Dal (“JBD”) executive committee, a youth wing of the Bangladesh Nationalist Party (“BNP”).

10    The appellant’s claims made in his protection visa application can be summarised as follows.

a)    He left Bangladesh in order to save his life. The Awami League had tried to kill him, attacking him with sharp weapons during an attack on his house in June 2011. He claimed also to have been attacked on a prior occasion, when the Awami League had severely injured him and broken his teeth as a consequence of which he was hospitalised at Dhaka Medical College. The Awami League set fire to his house.

b)    These attacks were because he was Vice President of the JBD executive committee.

c)    When his family went to the police, they refused to accept his complaints because they were made against the Awami League leader, Sultan Sikder, and his associates who he regarded as very dangerous and powerful. He claims that in January 2012, Sultan Sikder and his associates killed a close friend and political colleague.

d)    Upon being released from hospital, the appellant went into hiding in order to avoid further attacks. Whilst he was in hiding, the police are said to have visited his home in order to arrest him in connection with a riot in Keraniganj in April 2011, even though he was not present.

e)    He fears that the Awami League (especially Sultan Sikder and his associates) will kill him if he returns and will also influence the police and Rapid Action Battalion (“RAB”) to arrest him on false charges and kill him.

f)    The appellant has a wife and two sons, who remained in Bangladesh but recently moved away from their home to live with the appellant’s father-in-law in order to avoid further harassment from the Awami League.

g)    Since the attacks, the appellant has attempted to obtain a visa in order to travel overseas for his own protection.

h)    The appellant claims that the authorities in Bangladesh cannot protect him as they operate under the influence of the Awami League.

11    The appellant attended a Department interview on 15 May 2012 and submitted a number of documents at the interview. The delegate found that the appellant lacked credibility and did not accept that he was a high profile BNP activist, as claimed. The delegate found that he did not have a well-founded fear of persecution for a Convention-related reason and that he did not meet the alternative criterion for complementary protection.

3.    The decision of the Tribunal

12    The appellant applied to the Tribunal on 20 August 2012 for a review of the decision made by the Minister’s Delegate. The Tribunal had before it the Department file, including the interview by the delegate to which it listened and papers relating to the appellant’s identity. This included, importantly, advice from the United Kingdom that the appellant’s biodata matched that of a person identifying by a different name who had presented on 26 August 2010 in connection with a visa application. The Tribunal found that the front page of the passport used by that person appeared to show the appellant’s image and the signature in Roman letters matched that currently used by the appellant.

13    On 7 February 2013, the appellant attended a hearing before the Tribunal at which he also gave oral evidence with the assistance of an interpreter in Bengali (Bangla) and English. The appellant was unrepresented. The Tribunal’s reasons contain a detailed account of the hearing. No issue is taken with that account and no other evidence is led as to what occurred at the hearing.

14    During his oral evidence before the Tribunal the appellant elaborated on his claims. The appellant also discussed with the Tribunal each of the documents that he submitted to both the Department and the Tribunal.

15    During the course of the Tribunal’s hearing, the appellant was invited to “comment/respond” in writing or orally to adverse information that would form the reason, or part of the reason, for affirming the decision of the Minister’s Delegate to refuse to grant the appellant a protection visa. That adverse material was that:

a)    in 2010, the appellant obtained and attempted to use a fraudulent passport;

b)    he had initially denied having ever using fraudulent documents; and

c)    he had explained his need for the documents by stating that he had to leave Bangladesh (effectively to avoid persecution), while, at the time that he used them (prior to 2011), he had not experienced any significant problems.

16    The Tribunal explained the significance of the adverse information to the appellant, namely that:

a)    when taken together with the appellant’s residency in the United Kingdom for five months in 2005/2006, it could indicate that his priority was not BNP politics but rather to find a chance to migrate;

b)    it could indicate that he had given false information about his need for a passport in 2010, and hence also the reason for his departure from Bangladesh in 2012; and

c)    it could indicate that the appellant had in the past relied on forged documents and may continue to do so.

17    The Tribunal explained the consequences of the adverse information, in particular, that it might find him to be a witness of low credibility and disbelieve his claims. The appellant confirmed that he understood these matters and informed the Tribunal that he had given his comments and responses during the hearing and did not wish to add to these. The Tribunal explained his options for comments/response, including that he may request more time by way of an adjournment of the hearing or time for a written reply. The appellant said that he had given his comments/responses to these points during the hearing and did not wish to add to them.

18    Finally, at the end of the hearing the Tribunal asked the appellant if he feared harm in Bangladesh for any other reasons that might relate to complementary protection. The appellant confirmed that he had given all his claims and evidence. The Tribunal advised the appellant that it had extensive concerns about the truth of his protection claims, and that it would consider his evidence as a whole when making a decision.

3.1    The Tribunal’s findings

19    The Tribunal found the appellant to be a witness of very low credibility for a number of reasons. Of particular concern to the Tribunal was that the appellant had told the Tribunal under oath that he had never used another identity or any fraudulent documents when this was untrue. The Tribunal noted that it had considered the appellant’s comment that he had mentioned having held two passports at the hearing, and that he thought the Tribunal’s question related only to the documents that he had submitted for his protection visa application. The Tribunal noted also the appellant’s emphasis on the role of his migration agent in obtaining the passport and exploring all other options for him to leave Bangladesh. The Tribunal concluded at [69] of its reasons that:

“These comments and responses do not resolve the Tribunal’s concerns that the applicant made false statements until he was confronted with contrary evidence. This cases serious doubt over the applicant’s credibility, and the entirety of his claims and evidence. The Tribunal nonetheless proceeds to assess his claims for protection.”

20    The Tribunal’s findings as to his claims can be summarised as follows.

a)    In relation to the appellant’s claimed involvement with the BNP and the JBD, the Tribunal had comprehensive concerns regarding his alleged political involvement with the groups and surrounding the appellant’s description of his activities as a JBD office holder.

b)    The Tribunal accepted that the appellant and his family support the BNP and have some affiliations with local BNP figures. However, it did not accept that the appellant’s involvement and connections to the BNP had caused him or his family any problems in the past. The appellant’s claims of active involvement with the BNP, and of having being an office-bearer of either the BNP or its youth wing, the JBD, were rejected by the Tribunal.

c)    The documentation submitted by the appellant in support of his claimed involvement with the JBD was considered by the Tribunal. However, the appellant’s attempted use of a fraudulent passport in 2010 raised concerns with the Tribunal regarding the authenticity of all of the appellant’s supporting documents. The Tribunal noted that the appellant had stated his father in law had collected the documents and sent them to him in an envelope. However he also described the person identified on the envelope as a political friend living in Dhaka. The appellant did not appear to know much about the efforts of his father in law to obtain the documents and it was therefore difficult for the Tribunal to assess their provenance. Having regard to its concerns regarding the corroborative documents provided by the appellant, the Tribunal did not accept that he had any active involvement in the BNP or any of its subsidiary organisations, including the JBD. It found that the appellant had fabricated his claims to be a JBD activist, local leader and/or office bearer.

d)    The Tribunal did not accept that the appellant had been attacked whilst riding his motorcycle in February 2011 and rejected the claim that he had been targeted by Sultan Sikder and his gang. Furthermore, the Tribunal did not accept that the appellant’s home had been vandalised and he had been attacked with sharp weapons by the Awami League in June 2011, or that he had subsequently been in hiding since the alleged attack.

e)    In relation to the appellant’s alleged involvement in the Keraniganj riots in April 2011, it was noted that the charge sheet that was presented to allegedly evidence various offences he was said to have committed, did not include the appellant’s name. As the charge sheet disclosed no link between the riots and the appellant, the Tribunal concluded that the appellant was not accused of any involvement in the events in Keraniganj in April 2011. It did not accept that the riots, or any other reason, made the appellant go into hiding and the Tribunal further did not accept that the appellant or his family had moved in response to threats from the police or from factors associated with his claim for protection.

f)    Finally, it was the Tribunal’s conclusion that the appellant’s claims of past harm, and all of his associated claims, had been fabricated. As the primary judge explained at [19] of his judgment in the court below, having considered the appellant’s claims individually and cumulatively, “the Tribunal rejected critical aspects of the [appellant’s] claim that he had suffered, or would suffer persecution, on the basis of his political opinions if he would [be] returned to Bangladesh”. The Tribunal was also not satisfied that the appellant fulfilled the criterion for complementary protection under s 36(2)(aa) of the Act due to a lack of credible supporting evidence.

4.    The decision of the federal circuit Court

21    The amended application for constitutional writs in the Court below contained three particularised grounds of appeal.

22    The first ground alleged that the Tribunal had failed to provide weight to the appellant’s supporting documents. With respect to this ground, the primary judge found at [30] of his Honour’s reasons that “[c]ontrary to the [appellant’s] submissions, a fair reading of the Tribunal’s decision record discloses that it did consider whether the [appellant] would suffer persecution on the basis of his political activities. Further, the Tribunal provided the [appellant] with every opportunity to explain and elaborate on his claims in support of his application for a protection visa.” With respect to the appellant’s documents, the primary judge noted that the Tribunal did consider the documents provided by the appellant but had concerns about their authenticity, particularly given the appellant’s use of fraudulent documents in the past. His Honour correctly held that the question of weight to be given to evidence is a matter for the Tribunal alone to determine. Questions as to the weight to be given to particular evidence are quintessentially matters concerned with the merits of the appellant’s claims which are beyond the jurisdiction of this court and of the court below to address.

23    The second ground alleged below was that the Tribunal had failed to take into account the country’s political situation. However, the primary judge found at [35] that “[a] proper reading of the Tribunal’s reasons for decision discloses that it did, contrary to the [appellant’s] assertion, address the [appellant’s] chance of persecution on his return to Bangladesh having regard to his political activities.”

24    No challenge is made by the appellant to the correctness of the decision of the court below in rejecting the first and second grounds and, in any event, I can see no error in his Honour’s reasons.

25    The third ground alleged below was that the Tribunal “…failed to accord my natural justice” and gave the following particulars:

“A.    As prove of my identity I have provided the identity documents from my country but the Tribunal failed to give any weight to those documents. Further I submit that the Tribunal failed to provide me an opportunity to response the identity issue.”

26    This ground was considered by the primary judge at [38]-[40] of his reasons. Specifically his Honour found that the Tribunal, as earlier explained, had accepted the appellant’s claimed identity and further found, contrary to the appellant’s claims that:

“…it is clear that the Tribunal did provide the applicant with ample opportunity to respond to his use of a fraudulent passport. He was invited to respond to that adverse information at the hearing before the Tribunal but stated that he had given his comments/responses to these points and that did not wish to add to them.

As the Tribunal used correctly the procedure under s.424AA of the Migration Act, it discharged its obligation under s.424A(1) of the Migration Act. Section 424A of the Migration Act requires the Tribunal to give an Applicant ‘clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.’ Section 424AA of the Migration Act allows the Tribunal to meet the requirements of s.424A by putting any such information orally during the hearing and when the Tribunal does so, there is no continuing requirement to meet s.424A.”

5.     conclusions on The appeal

27    It is apparent from the appellant’s oral submissions that on this appeal he seeks to take issue with the rejection by the primary judge of his third ground of review before that court. However, in his oral submissions the appellant only reiterated his explanation to the Tribunal the reasons as to why he had not initially mentioned in his sworn evidence prior use of another identity or a fraudulent document, and took issue with the rejection by the Tribunal of that explanation and its findings as to matters of credit. His submissions took issue therefore only with the factual merits of the decision of the Tribunal which are matters solely for the Tribunal to determine and did not identify any error in the decision of the court below.

28    Nor in any event do I consider that there is any error in the reasons of the primary judge for rejecting this ground. It is apparent that the Tribunal complied with the procedural fairness requirements prescribed by the Act and in particular with the obligations imposed by section 424A(1) of the Act for the reasons given by the primary judge.

29    It follows that the appellant has failed to establish any error on the appeal and that the appeal must be dismissed. I proceeded to hear the parties on the question of costs. It is trite to say that the successful party is ordinarily entitled to its costs and the appellant did not raise any objection to that course, although he was offered an opportunity to do so. On the basis of the first respondent’s affidavit sworn on 18 February 2014, I am satisfied that the sum of $2,500 is an appropriate figure and will order that costs be fixed in that amount.

Associate:

Dated:    18 February 2014