FEDERAL COURT OF AUSTRALIA

SZTTW v Minister for Immigration and Border Protection [2014] FCA 837

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 for leave to appeal, such costs to be fixed in the amount of $4,850.

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 a decision of the Federal Circuit Court of Australia. That court dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). It found that the applicant had not raised an arguable case for the relief claimed and dismissed the proceedings pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC rules). The Tribunal decision under review had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act).

2    The applicant is a citizen of Bangladesh. On 22 February 2012 he applied for a protection visa. The applicant feared that he would be persecuted in Bangladesh because of his political views. In particular, he claimed that he would be harmed or was likely to be harmed by Bangladesh Awami League officials by reason of his involvement and support for the Bangladesh Nationalist Party (BNP). On 8 March 2012 a delegate of the Minister refused his application. On 12 April 2012 the applicant applied to the Tribunal for a review of that delegate’s decision. On 19 November 2013 the applicant appeared before the Tribunal and as part of those proceedings gave evidence and presented various arguments with the assistance of an interpreter competent in the Bengali and English languages.

3    On 18 December 2013 the Tribunal affirmed the delegate’s decision. As a consequence the applicant commenced judicial review proceedings in the Federal Circuit Court on 14 January 2014, seeking judicial review of the Tribunal’s decision. On 14 May 2014 Judge Emmett dismissed that application for review.

4    The orders made by the primary judge dismissing the application for review were interlocutory in nature and as stipulated in the FCC rules, in particular r 44.12(2) (SZTRG v Minister for Immigration and Border Protection [2014] FCA 836 at [15]). Leave to appeal is now sought from those orders.

Tribunal’s decision

5    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.

6    The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations in accordance with s 36(2)(a) or s 36(2)(aa) of the Migration Act. That conclusion was partly based on the Tribunal’s assessment of the applicant’s lack of credibility.

7    The Tribunal found that the applicant had exaggerated his role and prominence in the BNP. It rejected his claims in relation to key events that were said to have occurred in Bangladesh that gave rise to the perceived risk of harm to the applicant. For example, the Tribunal at [27] stated:

27.     Having considered the above concerns on a cumulative basis, the Tribunal is not satisfied that the applicant has been truthful in his account of his involvement with the BNP and the harm he claims to have suffered in Bangladesh as a result of this. The Tribunal finds that the applicant did not hold any position in the Bangladesh National Jubodol, that he was not threatened or attacked, that his father was not General Secretary in the BNP, that the applicant’s shop was not attacked and that the applicant did not flee Bangladesh in 2003 as a result of any fear of harm.

8    One should also appreciate the context within which the Tribunal was dealing with the significance of the applicant’s alleged association with the BNP. The Tribunal set out some of that context at [29]:

29.     The Tribunal considers reliable evidence from various sources that political violence is a frequent occurrence in Bangladesh. The Awami League and the BNP have a long history of conflict. The alternating periods of rule have corresponded with massive demonstrations and strikes carried out by the opposition party. The current BNP-led opposition has intermittently boycotted the current parliament since its formation, and continues to organise hartals (mass protests) to oppose the Awami League government’s initiatives. A number of reports refer to BNP supporters receiving adverse treatment from supporters of the Awami League, which took government following its victory at the 2008 parliamentary election. Other reports refer to clashes between BNP and Awami League supporters. The Bangladeshi police force is highly politicised and is used by the government of the day as a tool again political opponents. Instances of BNP supporters receiving adverse treatment from security forces are reported, although BNP supporters have also attacked security forces, or received attention from them due to violence committed during demonstrations and hartals. The incumbent Awami League government has withdrawn “politically motivated” cases against their own supporters while leaving those against BNP politicians in place. Recent reports suggest that the violence has increased in the lead up to the planned election in January 2014. No reports were located which refer to the treatment of ‘non-active’ BNP supporters.

9    Further, the Tribunal made specific reference to a letter submitted by the applicant in purported support of his claims. The Tribunal determined that it ought not to treat that letter as being genuine. It dealt with that matter at [28] of its reasons as follows:

28.    The applicant has provided a letter of support from Md Mohib Udin Belal, President, Fechugonj Thana Jubodol, Sylhet, Bangladesh, dated 10 May 2012. Although this was not translated at Departmental level a translation was subsequently provided to the Tribunal. This letter states that the applicant was Joint General Secretary from 2001 to 2003, which is inconsistent with the applicant’s evidence that he was Joint Secretary from 1999. Furthermore, as discussed with the applicant at the hearing the information available to the Tribunal indicates that forged or fraudulently obtained documents are readily available in Bangladesh. This country information and the inconsistency between the letter and the applicant’s own evidence leads the Tribunal to find that the letter has been fabricated.

10    The Tribunal was also not satisfied that the applicant participated in BNP Australia activities for any purpose other than to strengthen his claims to be a refugee. Accordingly, the Tribunal disregarded that conduct, as it was required to do under s 91R(3) of the Migration Act. At [32] and [33] the Tribunal stated:

32.    The Tribunal has considered the activities of the applicant while in Australia. The applicant has provided a letter of support from Delwar Hossain, Convener, BNP Australia dated 7 September 2012, which states that the applicant has been actively involved with the BNP Australia since he arrived. The applicant stated at the hearing that he was no longer involved with the Mascot group but now participates in Lakemba. The Tribunal accepts that the applicant had been involved with the BNP Australia. Section 91R(3) of the Act requires that the Minister (and therefore the Tribunal) disregard any conduct engaged in by the applicant in Australia unless:

    (b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees protocol.

33.    In light of the Tribunal’s significant credibility concerns discussed above, the Tribunal is not satisfied that the applicant participated in the BNP activities other than for the purposes of strengthening his claims to be a refugee. Therefore, the Tribunal disregards this conduct in assessing the applicant’s claims to be a refugee.

11    As I have said, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Migration Act.

12    In summary, it said at [31] and [34]-[37] the following:

31.     In light of the Tribunal’s adverse credibility finding as discussed above, the Tribunal’s findings that the applicant was not harmed or persecuted in Bangladesh as he has claimed despite supporting the BNP for many years and the Tribunal’s finding that the letter of support has been fabricated, the Tribunal finds that the applicant has exaggerated his role and prominence in the BNP. The Tribunal is not satisfied that he has been active in the BNP in Bangladesh as he claimed, that he has donated large sums of money to the BNP, or would be active in expressing his political views if he returned to Bangladesh. The applicant may favour the policies of the BNP over those of the Awami League. However the Tribunal is not satisfied that he has been an active supporter of the BNP, would be an active member if he returns to Bangladesh or that he might be perceived as such if he returns to Bangladesh.

…

34.    For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant would be subject to any harm on the basis of his political opinion or activities if he was to return to Bangladesh. The Tribunal is not satisfied that the applicant has a well-founded fear of Convention related persecution in the foreseeable future.

35.    For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

Complementary protection criterion

36.    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). For the reasons discussed above the Tribunal has found that the applicant is not a credible witness and there is no real chance that he would be harmed in Bangladesh for the reasons he has claimed. It is not satisfied that the applicant has been attacked, mistreated, targeted, harmed or threatened in Bangladesh. The Tribunal does not consider the applicant credible with regard to his claimed experiences in Bangladesh and does not accept that he was harmed or threatened in the past for the reasons he has given… Although the Tribunal accepts that the applicant is a supporter of the BNP, the Tribunal is not satisfied that he has been an active supporter, has donated huge sums of money to the party, would be an active supporter if he returned or that he might be perceived as an active supporter if he returns to Bangladesh. Therefore the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that he will suffer significant harm as a result of his political opinions if he returns to Bangladesh.

37.    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

13    On 14 January 2014, the applicant commenced judicial review proceedings in the Federal Circuit Court. On 28 April 2014, by an amended application, the applicant put forward three grounds of review. On 14 May 2014 a show cause hearing was heard before Judge Emmett. The applicant appeared at that hearing assisted by a Bengali interpreter. The primary judge concluded that Ground 1 of the applicant’s application made various generalised assertions that did not disclose any error capable of review by that court.

14    Ground 2 principally alleged that the Tribunal failed to put certain matters to the applicant. The primary judge held that this misconceived the obligations that were incumbent upon the Tribunal. In relation to Ground 3, where the applicant appeared principally to make an allegation of actual or ostensible bias, the primary judge noted that the applicant had been given opportunities to put forward evidence to support that claim but had not availed himself of that opportunity. All that was before the primary judge was the Tribunal’s decision record. On a fair reading of that record, the primary judge was not satisfied that the actual or ostensible bias complaint could be made out.

15    The applicant raised a number of other complaints in his application for judicial review, but the primary judge concluded that those complaints invited an impermissible merits review of the Tribunal’s decision. Moreover, she held that none of them were made out. Accordingly, the primary judge dismissed the application for judicial review.

Application for leave to appeal

16    On 26 May 2014, the applicant applied to this Court for leave to appeal from the primary judge’s decision. The factors that guide the exercise of my discretion in terms of the grant of leave to appeal have been set out in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Essentially, the test is two-pronged. First, the Court must consider whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration. Second, the Court must consider whether substantial injustice would result if leave were to be refused, supposing the decision below to be wrong. If both these limbs are satisfied, then ordinarily leave to appeal will be granted.

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

18    Let me deal with some other matters of principle relevant to the nature of the task performed by the primary judge under r 44.12.

19    The primary judge dismissed the applicant’s application because she was not satisfied that the applicant had raised an arguable case for the relief sought. An appeal against a finding of satisfaction or non-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], 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 acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts, did not take into account some material consideration or reached a result that is plainly unreasonable or unjust.

20    There is also an additional residual dimension beyond the requisite state of non-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 (House v The King) at 504-505 per Dixon, Evatt and McTiernan JJ (SZSLD v Minister for Immigration and Citizenship [2013] FCA 547 (SZSLD) at [21] per Griffiths J).

21    After reviewing the reasons of Judge Emmett, I am not satisfied that her Honour’s decision is attended with sufficient doubt in disclosing 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. I will deal with the proposed grounds of appeal in turn.

22    The applicant filed a draft notice of appeal that set out three general and unparticularised proposed grounds of appeal. They are as expressed, literally, as follows:

1.    The Honourable Federal Circuit Court erred in not considering that the Refugee Review Tribunal (the Tribunal) has an obligation to collect information for the purpose of review according to the relevant Act of the Migration Act 1958 (the Act) about the claim of the applicant because the situation of his country is very dangerous and the applicant could be harmed if he has to return to his country. The Tribunal made a mistake not collecting the information for the purpose of review.

2.    The Honourable Federal Circuit Court did not consider that the Respondents did not provide the applicant a court book to prepare his case to satisfy the Court that the applicant has a arguable case to proof. The applicant called the respondent to inform about the court book but the respondent did not provide him any papers that he can proof his case.

3.    The Honourable Federal Circuit Court did not consider that the applicant is suffering from financial hardship and he made some points at the hearing from his own observations and he wanted some more time to prepare his case to satisfy the Court about his genuine claim for protection but the applicant was not given an opportunity to satisfy the requirements.

Ground 1 – failure of the Tribunal to collect information

23    Pursuant to Ground 1, the applicant asserts that the Tribunal failed to collect information relevant to the applicant’s case for the purpose of the review before it. Ground 1 also asserts that the Federal Circuit Court failed to consider this deficiency of the Tribunal, and failed to make orders, in essence, curing such deficiency. The primary judge dealt with this ground at [34]-[35] as follows:

34.    In oral submissions, the applicant asserted that the Tribunal did not inquire into his case to verify his claims. There is no general obligation on a [Tribunal] to investigate an applicant's claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment.)

35.    The duty imposed on the [Tribunal] by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

24    In those passages, the primary judge considered a submission that had been made by the applicant, which dealt with the substance of Ground 1 now asserted in this Court. Ground 1 misconceives the role of the Tribunal. It was not for the Tribunal to make the applicant’s case for him. It had no “obligation to collect information” per se. Moreover, the primary judge considered the complaint and rejected it.

25    I am not satisfied that Ground 1 has any substance, let alone raises a sufficient doubt as to the primary judge’s decision such as might warrant the grant of leave to appeal.

Ground 2 – failure of Minister to provide court book

26    Ground 2 complains that the Minister did not file a court book as part of the hearing in the Federal Circuit Court. As I have said, the hearing before the primary judge was a show cause hearing, that is, an interlocutory proceeding. In such circumstances, there was no requirement for any court order requiring the Minister to file a court book or any demonstrable need for a court book. Accordingly, no court book was required to be or was filed in the Federal Circuit Court proceedings. Further, in my view, in any event the applicant had sufficient opportunity to put forward such material as he considered necessary to deal with his application in the Federal Circuit Court on the show cause hearing.

27    There is no arguable error disclosed in the primary judge’s approach to the show cause hearing, let alone such as to warrant the grant of leave to appeal. I should also say that no specific document was identified by the applicant of a type that he could have but did not put forward or otherwise would have used, and that was relevant to the show cause hearing, that might otherwise indicate that there was some deficiency in the manner in which the primary judge approached and determined the show cause hearing.

Ground 3 – financial hardship and lack of opportunity to prepare case

28    Ground 3 asserts the following:

3.    The Honourable Federal Circuit Court did not consider that the applicant is suffering from financial hardship and he made some points at the hearing from his own observations and he wanted some more time to prepare his case to satisfy the Court about his genuine claim for protection but the applicant was not given an opportunity to satisfy the requirements.

29    In respect of Ground 3, the following can be said. First, the application to the Federal Circuit Court was filed on 14 January 2014, but the hearing was not until 14 May 2014. Therefore, the applicant had four months to prepare his case and obtain any further material he required. Second, there is no evidence before me that an adjournment or additional time was sought by the applicant on 14 May 2014 to prepare his case prior to the show cause hearing before the Federal Circuit Court. The Minister submitted that no such adjournment had been sought on 14 May 2014. Previously, the matter had come before the primary judge on 3 April 2014 and directions made for the filing and service of any affidavit material and submissions. Third, it must be emphasised that the proceeding in the Federal Circuit Court was not a merits review in any event. Ground 3 also refers to the applicant suffering financial hardship. One can appreciate the applicant’s disadvantageous position in this respect, but nevertheless that matter does not, in and of itself, disclose any arguable error on the part of the Federal Circuit Court in how the show cause hearing proceeded or was determined.

General

30    The applicant has sworn an affidavit dated 26 May 2014 in support of his application for leave to appeal, asserting at [2]-[6]:

2.    I do not know much about the Australian law, so I was not able to understand the actual requirements for this application to satisfy the Honourable Court...

3.    I am suffering from mental anxiety because I have not seen my parents for long time.

4.     I have financial hardship, so I do not have money to hire a lawyer.

5.     My case and my fear for harm were not properly assessed by the Refugee Review Tribunal and I have been suffering for that because I cannot go back to my country

6.     I think that the Tribunal did not apply the right law for the assessment of my case and the Court below did not properly look into my case because the other side did not comply with law.

Having considered the contents of that affidavit, I do not consider that any of those matters demonstrate any arguable error on the part of the primary judge. The matters referred to in [5] and [6] of the affidavit are complaints against how the Tribunal proceeded. Further, to the extent that the complaint in [6] refers to how the Federal Circuit Court proceeded and is a complaint concerning the absence of a court book, I have dealt with that above; and if it is some other complaint, it is vague and unsubstantiated.

31    Further, on 25 July 2014 the applicant filed written submissions which made various assertions, including that the Tribunal had made mistakes and that the Tribunal had wanted to conclude that the applicant’s evidence was inconsistent when it was said this was not the case. The applicant elaborated on those submissions today at the hearing before me, with the aid of a Bengali interpreter. In my view, those complaints essentially seek to engage in a merits type review of the factual findings of the Tribunal. That is impermissible.

32    The applicant also takes issue with the adverse credibility findings made by the Tribunal. That is not a matter that came within the purview of either the judicial review proceedings before the primary judge, unless it could be characterised in terms of a jurisdictional error in some way, or the application for leave to appeal before me. In any event, her Honour considered the complaints raised and rejected them (see [24]-[26] of her Honour’s reasons). No arguable error is disclosed. The applicant also submitted that the Tribunal’s decision was infected with bias and that the Tribunal was not acting in the nature of a truly independent tribunal. That is not apparent from my reading of the Tribunal’s reasons. In any event, Judge Emmett considered that matter (see [27]-[29]) and found that the applicant had not established any such assertion (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 at [71]-[72] per Gleeson CJ and Gummow J). In my opinion, the primary judge’s review of that issue again does not disclose any arguable error on her part.

33    I am not satisfied that the primary judge’s decision is attended with sufficient doubt such as to warrant the grant of leave to appeal. Accordingly, the applicant’s application for leave to appeal will be dismissed.

Associate:

Dated:    11 August 2014