FEDERAL COURT OF AUSTRALIA

SZTRG v Minister for Immigration and Border Protection [2014] FCA 836

THE COURT ORDERS THAT:

1.    The Applicant's application for leave to appeal is dismissed.

2.    The Applicant is to pay the First Respondent's costs of and incidental to his application.

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

REASONS FOR JUDGMENT

1    This is an application for leave to appeal from the judgment of Judge Emmett of the Federal Circuit Court delivered on 14 May 2014, in which her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 5 March 2013.

2    The applicant seeking leave to appeal before this Court is a citizen of Bangladesh, born on 16 November 1977. He arrived in Australia on 4 April 2012. The applicant applied for a Protection (Class XA) visa on 19 August 2012 under the Migration Act 1958 (Cth) (the Migration Act). The applicant claimed to fear harm from the Awami League by reason of his allegedly politically active role in the Bangladesh Nationalist Party (BNP), for the reasons of both his political opinions and also being a member of a particular social group consisting of the BNP. The Awami League and the BNP are the two major political parties in Bangladesh. They are diametrically opposed in their respective philosophies. Moreover, when one is in power, it is said to oppress the supporters of the other. At all times relevant to the applicant’s protection visa application, the Awami League has held government in Bangladesh. As I say, the applicant’s political affiliation is asserted to lie with the BNP.

3    The criteria for a protection visa are set out in s 36 of the Migration Act and Pt 866 of Sch 2 of the Migration Regulations 1994 (Cth). Relevantly to the present matter, there are two potentially applicable criteria: first, whether the applicant is a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (s 36(2)(a)) – in summary, the “well-founded fear of being persecuted” criterion; second, whether the applicant is a person in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to a receiving country, there is a real risk he will suffer significant harm (s 36(2)(aa)) – in summary, the “complementary protection” criterion.

4    On 30 October 2012, the applicant’s protection visa application was refused by a delegate of the first Respondent (the Minister) under s 65 of the Migration Act. On 14 November 2012, the applicant applied to the Tribunal for a review of that decision. On 5 February 2013, the applicant gave oral evidence and made submissions before the Tribunal. The applicant was represented at that hearing by a registered migration agent. The hearing was conducted with the assistance of an interpreter competent, inter alia, in the Bengali and English languages.

Tribunal’s decision

5    On 5 March 2013, the Tribunal found that the applicant was not a credible witness as to his claims to have been a political activist in the BNP. It found that the applicant’s responses to questions at the hearing regarding his knowledge of the BNP did not reflect the level of knowledge that might reasonably be expected from a person who had supported the BNP since 1995, and who had allegedly become a member of the executive committee of the BNP in 2003.

6    The applicant submitted a letter, allegedly signed by two BNP party figures, which was said to corroborate his claims. But the applicant was unable to provide the names of the signatories to that letter. This deficiency, in combination with the country information concerning the availability of fraudulent documents in Bangladesh, led the Tribunal to place no weight on that letter. In addition, the applicant submitted to the Tribunal untranslated Bengali media reports. But the reports did not mention the applicant directly, and the Tribunal placed little, if any, weight on those documents.

7     The Tribunal accepted that the applicant had a political preference for the BNP and may have been involved in the party at a low level. But the Tribunal was not satisfied that he had nor now has any profile as an activist with that party which would expose him to a real chance of serious harm. The Tribunal in its reasons said in summary at [61]-[62]:

61.    Taking these matters together, I am prepared to accept that the Applicant has a political opinion in favour of the BNP, and that he may have voted for the Party in elections. I also accept that he may have given some form of low level administrative support to its youth wing, and later to the Party itself, at various times, when he visited his village from his home in Dhaka. I am not satisfied that his political activities rose any higher than this, however, or that he was in fact a member of the Jubo Dal or the BNP or that he held a position on the BNP executive committee in his village. I am not satisfied that he gave speeches or that he attracted public attention to his political opinion in any similar way. I am not satisfied on this basis that he had any profile as an activist for the BNP, either in his village or elsewhere. Nor am I satisfied that he was ever harmed as a result of his political opinion in the past, or that he was forced to flee Bangladesh after the 2008 election for fear of such harm. I am not satisfied that he is being pursued by the Awami League in Bangladesh, or that his family has had to go into hiding as a consequence.

62.    I accept that the independent country information before the Tribunal indicates that political violence remains a serious problem in Bangladesh, particularly around the time of elections. Recent violent clashes between the authorities and Islamists, following sentencing of a group of Jamaat-i-Islami leaders by a special tribunal dealing with war crimes from the 1971 war of liberation, serve to underline the tensions which exist between the leading political parties. (‘At Least 19 Killed as Unrest Persists in Bangladesh’, New York Times/International Herald Tribune, 3 March 2013; ‘Troops deployed in Bangladesh as riot death toll climbs,’ The Guardian, 3 March 2013; ‘Toll rises as Bangladesh brought to a halt,’ The Australian, 5 March 2013). Even against this background of violence, however, I am not satisfied the information demonstrates that people are harmed in Bangladesh simply because they happen to support one or other party. Nor am I satisfied in the particular case of the Applicant that he ever had, or now has, a profile as a political activist which would expose him to a real chance of serious harm.

8    In summary, the Tribunal did not accept that the applicant would suffer serious harm as a member of the BNP, or as a result of his political opinion. Nor did the Tribunal accept that there was a real chance that the applicant would suffer serious harm in Bangladesh as a member of the BNP, even if that party could be said to constitute a particular social group. Accordingly, the Tribunal determined that it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the 1951 Convention as amended by the 1967 Protocol (s 36(2)(a) of the Migration Act).

9    The Tribunal also addressed the alternative criterion for complementary protection, but was not satisfied that there was any real risk that the applicant would suffer significant harm if removed from Australia (s 36(2)(aa) of the Migration Act). Because it is relevant to the proposed grounds of appeal in the application for leave to appeal before me, it is appropriate to refer to [16]-[18] of the Tribunal’s reasons which state:

16.    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17.    ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’, are further defined in s.5(1) of the Act’.

18.    There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

At [67] and [69], the Tribunal also stated:

67.    I have also considered whether the Applicant might meet the alternative criterion for complementary protection. Having considered the information I am not satisfied that it provides any basis for finding that there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.

    …

69.    Having concluded that the Applicant does not meet the refugee criterion in s.36(2)(a) the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Proceedings before the Federal Circuit Court

10    On 16 December 2013, the applicant filed an application for judicial review of the decision by the Tribunal in the Federal Circuit Court. On 14 May 2014, a show cause hearing was held pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC rules). Judge Emmett dismissed the application pursuant to r 44.12(1)(a) of the FCC rules. She held that none of the applicant’s complaints raised an arguable case for the relief claimed.

11    The primary judge considered that the applicant’s grounds essentially constituted a merits challenge of the adverse findings of the Tribunal, and that there was nothing on the face of the decision record of the Tribunal to suggest that those findings were not open to the Tribunal on the material before it.

12    Further, to the extent that the applicant’s grounds alleged error in the Tribunal’s consideration of the applicant’s particular social group claim, the primary judge found that such assertions misunderstood the Tribunal’s findings. The Tribunal had found that even if the BNP constituted a particular social group as claimed, the applicant was not a member of the BNP and therefore not a member of the particular social group.

13    Further, the primary judge noted that no evidence had been provided in support of the applicant’s allegations of bias. The primary judge also found that a fair reading of the Tribunal decision did not disclose any actual or ostensible bias. Further, to the extent that the applicant’s grounds asserted some breach of procedural fairness, the primary judge found that none was apparent on the face of the Tribunal decision. In summary, the primary judge determined that none of the grounds identified any arguable jurisdictional error. Accordingly, the primary judge dismissed the application with costs.

Application for leave to appeal

14    On 21 May 2014, the applicant applied to this Court for leave to appeal from the orders of Judge Emmett. The draft notice of appeal filed with the application set out the following proposed grounds expressed, literally, as follows:

1.    Hon Judge EMMETT of Federal Circuit Court OF Australia failed to hold that the Refugee Review Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958. The Tribunal failed to follow the Rules of Real Risk Test of Persecution and harm.

2.    Appellant claims that the Tribunal misconstrued the facts and asked many irrelevant questions to discredit the oral evidence. He was denied procedural fairness when the hearing was not conducted freely and fairly. The Tribunal raised many irrelevant question related to his political profile as a leader and member of BNP.

3.    The appellant claims that the Tribunal failed to deal with the main issue of fear of persecution. He fears of persecution because of having membership of a particular social group, namely a member of the BNP of Bangladesh.

The grounds, in form, are expressed differently to those set out in the application for leave to appeal, but nothing turns on this. The applicant filed an affidavit in support of his application for leave to appeal, but it does not add anything to the resolution of his application.

15    The applicant requires leave to appeal from the judgment and orders of Judge Emmett, as her decision was interlocutory (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)). First, r 44.12(2) of the FCC rules expressly provides: “To avoid doubt, a dismissal under paragraph (1)(a) [of r 44.12] is interlocutory.” Second, in any event, general principles concerning the nature of interlocutory judgments establish that dismissal pursuant to r 44.12(1)(a) is interlocutory in nature (Re Luck (2003) 203 ALR 1 at [6]-[9]; Rana v University of South Australia (2004) 136 FCR 344 at [10]-[15] and SZKCV & Anor v Minister for Immigration and Citizenship [2007] FCA 1201 at [2]-[3]). The test for whether an order is final or interlocutory is whether the order made finally determines the legal rights of the parties in the principal action before the court (Bienstein v Bienstein (2003) 195 ALR 225 at [25] per McHugh, Kirby and Callinan JJ). Regard must be had to the legal as distinct from the practical effect of the judgment (SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [3]). Judge Emmett’s decision to dismiss the application for judicial review on the basis that it disclosed no arguable case reveals that her Honour did not purport to finally determine the rights of the parties (see for example her reasons at [32]). The judgment was interlocutory. Accordingly, leave to appeal is required.

Preliminary matters

16    Before turning to the substance of the application for leave to appeal, let me address several preliminary matters.

17    First, the applicant at the hearing before me, and with the assistance of an interpreter, sought the opportunity to put before me various unspecified documents that were not before either the Tribunal or the Federal Circuit Court. Given the nature of the application before me I refused that application. Second, the applicant sought an adjournment for an unspecified time to obtain legal assistance. I declined that request. There has been adequate opportunity for the applicant to obtain such representation. Further, there is an insufficient likelihood that such assistance would be forthcoming in any event. Further, given my views as to the prospects of success of the applicant’s proposed grounds of appeal, I did not see much, if any, utility in an adjournment. The applicant also sought an adjournment to prepare written submissions. Again, I consider that he has had adequate opportunity to file written submissions and I declined to grant any adjournment on that ground.

18    The factors that I must apply in determining whether to grant leave to appeal are, whether in all the circumstances, the decision below is attended with sufficient doubt to warrant its reconsideration, and whether substantial injustice would result if leave were refused supposing the decision to be incorrect (DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399).

19    Expressed slightly differently, leave to appeal will be granted where there is a reasonably arguable case that the decision of the court below is affected by an appealable error and a grant of leave is necessary to remedy a substantial injustice (Re CSR Ltd (2010) 183 FCR 358 at [5]).

20    Leave will be more readily granted where an interlocutory decision determines a substantive right as distinct from a mere matter of practice and procedure (SZTGS v Minister for Immigration and Border Protection [2014] FCA 676 (SZTGS) at [20] per Gleeson J).

21    Let me deal with a separate matter of principle relevant to the nature of the task performed by the primary judge under r 44.12. Her Honour proceeded under r 44.12(1)(a) which provided:

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application…

22    The primary judge’s decision dismissing the applicant’s application was because she was not satisfied that the applicant had raised an arguable case for the relief sought. An appeal against a finding of an absence of satisfaction as to a matter is subject to similar principles that apply to an appeal from a decision involving the exercise of discretion. As Gleeson  J said in SZTGS at [23]-[24]:

23.    In other contexts, an appeal against a finding of satisfaction [or an absence of satisfaction] as to a matter is subject to the same principles that apply to an appeal from a discretionary decision: see Singer v Berghouse (1994) 181 CLR 201 especially at 210-212; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 especially at [19], [27], [32] and Russo v Aiello (2003) 215 CLR 643 at [27].

24.     Applying these principles in this case, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the application had raised an arguable case for relief, the primary judge:

a. acted upon a wrong principle;

b. allowed extraneous or irrelevant matters to guide or affect him;

c. mistook the facts;

d. did not take into account some material consideration; or

e. reached a result that is plainly unreasonable or unjust: House v The King (1936) 55 CLR 499 at 504-505.

23    There is also an additional residual dimension beyond the requisite state of an absence of satisfaction being reached. The primary judge’s decision to dismiss the application, after not being relevantly satisfied, is itself an exercise of discretionary power under r 44.12(1)(a), thereby requiring identification of appealable error of the type discussed in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ (House v The King) (SZSLD v Minister for Immigration and Citizenship [2013] FCA 547 (SZSLD) at [21] per Griffiths J).

24    In the present case the applicant has failed to show any sufficient doubt about the correctness of the judgment below. I am not satisfied that her Honour’s decision is attended with sufficient doubt in disclosing an arguable appealable error of the type discussed in SZTGS, SZSLD and House v The King such as to warrant the grant of leave to appeal.

25    Generally, the applicant’s proposed grounds of appeal are vague and lack content. As I have said, there is also a disconformity between the grounds stated in the application for leave to appeal and the proposed grounds stated in the draft notice of appeal. I consider below the proposed grounds set out in the draft notice of appeal. Further, Ground 1 does not appear to have been raised before her Honour, although the matter is not completely free from doubt given the vagueness and manner in which the applicant expressed some of his grounds before the primary judge. It is not in the interests of justice that this ground now be entertained, particularly because it lacks any reasonable prospects of success for the reasons I discuss below and no explanation has been advanced for not raising it earlier (VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]-[27]).

26    In order to raise new grounds the applicant must demonstrate that it is expedient and in the interests of justice to allow them to be raised (O’Brien v Komesaroff (1982) 150 CLR 310 at 319 per Mason J and Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ). Factors that require consideration include the prospects of success of any new ground, any explanation for failing previously to raise such a ground, any prejudice to the other parties and any potential consequence that might flow to the applicant if leave was refused; further, the interests of other litigants may also require consideration (H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [8]; Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 at [62]; Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18] and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [162]-[166]). Let me turn to address the specific grounds.

Ground 1 – Failure to apply the correct test in relation to complementary protection

27    Ground 1 asserts a failure by the Tribunal to apply the correct test in relation to complementary protection. The Tribunal set out the relevant law in relation to complementary protection in [16]-[18] of its reasons. Further, an assessment regarding the complementary protection criterion as it applied to the applicant was made by the Tribunal at [67] and [69] of its reasons.

28    Generally, in light of the Tribunal’s finding regarding the applicant’s low level involvement in the BNP, the Tribunal’s complementary protection finding was open to it on the evidence before it. In my view, there is no substance to Ground 1. In any event, Ground 1 was not raised before the primary judge. In my view, it should not now be entertained. It lacks substance. Further, no satisfactory reason has been advanced as to why it was not raised before the primary judge.

Ground 2 – Misunderstanding of facts/denial of procedural fairness

29    Ground 2 asserts that the Tribunal misconstrued the facts. Further, there is an assertion that there had been a denial of procedural fairness. In terms of that part of the ground asserting a misconstrual of the facts and the asking of irrelevant questions, the applicant has not identified any arguable error in her Honour’s reasons in dealing with those asserted errors in the Tribunal’s reasoning and decision.

30    Further, the applicant has not provided any separate evidence to make out this ground. The Tribunal’s summary of the hearing contained in its decision is the only available evidence of what was said at the hearing. From an appraisal of its decision, in my view it would appear that there is no evidence that any facts were misconstrued. In my view, there is no substance to Ground 2 in this respect. Moreover, no error is identified in terms of her Honour’s analysis on that question.

31    A further part of Ground 2 also refers to an alleged denial of procedural fairness. The applicant has not identified any arguable error in Judge Emmett’s reasoning. Further, there is no evidence that the applicant was denied procedural fairness before the Tribunal. The Tribunal’s obligations to afford procedural fairness are set out in Division 4 of Part 7 of the Migration Act. Section 422B of the Migration Act has the effect that the relevant provisions are an exhaustive statement of the natural justice hearing rule. From what can be gleaned from the record, it would appear that the Tribunal complied with its obligations set out in that Division. I also note that the applicant attended the hearing before the Tribunal at which he was given the opportunity to present evidence and arguments (ss 425 and 425A of the Migration Act). In my view, the applicant has not identified any arguable matter establishing an arguable case for a denial of procedural fairness by the Tribunal, let alone any arguable error in Judge Emmett’s reasoning on this aspect.

32    For completeness, I note that Grounds 2 and 3 in the application for leave to appeal are combined into Ground 2 in the draft notice of appeal.

Ground 3 – failure to deal with fear of persecution

33    Ground 3 in the draft notice of appeal is expressed as follows:

The appellant claims that the Tribunal failed to deal with the main issue of fear of persecution. He fears of persecution because of having membership of a particular social group, namely a member of the BNP of Bangladesh.

34    This ground raises a complaint against the Tribunal rather than the primary judge. In any event, it lacks substance. From my review of the Tribunal’s decision, the Tribunal dealt thoroughly with that issue. Moreover, the primary judge also recognised this in her consideration of the matter (see for example [18] and [22] of the primary judge’s reasons). No arguable error is disclosed in terms of the primary judge’s consideration.

General

35    In summary, no arguable error has been established in relation to the primary judge’s judgment. It has not been demonstrated that the primary judge’s decision is attended with sufficient doubt to warrant a grant of leave to appeal. Leave to appeal will be refused.

Associate:

Dated:    11 August 2014