FEDERAL COURT OF AUSTRALIA

SZSFM v Minister for Immigration and Border Protection [2014] FCA 860

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The appellant is a citizen of Bangladesh who arrived in Australia on 6 June 2011 when he deserted from a merchant ship on which he worked. The appellant applied for a protection visa on 20 June 2011. On 22 September 2011, a delegate of the Minister for Immigration and Citizenship (now the Minister for Immigration and Border Protection) rejected the appellant’s protection visa application. The appellant sought review of the delegate’s decision before the Refugee Review Tribunal (the Tribunal).

2    The appellant claimed that he feared persecution in Bangladesh from the Awami League government and its supporters due to his political activities as a member of the Bangladesh National Party (BNP). The appellant claimed to be involved in the BNP’s student wing whilst at secondary school at Sandwip and then later to have become the general secretary of his local student branch of the BNP. The appellant claimed to have been attacked by supporters of the Awami League after the general elections in 1996, which the Awami League won, and that the police would not assist him. He said that he then moved from his home town of Sandwip to Chittagong where he was threatened by Awami League supporters and the police. Thereafter, he moved to his uncle’s house in Dhaka and was again threatened by Awami League activists and the police.

3    The appellant said that in October 2004 he took a job on a merchant ship. The appellant said that in 2005 he returned and remained active in the youth wing of the BNP in Sandwip. He said that in January 2008, after visiting his ill mother, he was attacked by Awami League activists with a pipe and was hospitalised.

4    The appellant said that on his release from hospital he took another job on a merchant ship in July 2008. On his return to his home in Chittagong, said the appellant, the Rapid Action Battalion (RAB) came to arrest him, but he managed to avoid them. In October 2009, he took another job on a merchant ship and when he returned to Chittagong in 2010, he was again threatened by the RAB.

5    The appellant said that in 2011, he took another job on a merchant ship and in June 2011 he deserted the ship when it arrived in Sydney. The appellant said that before undertaking that voyage, he was abducted by the RAB who tried to extort money from him.

6    Before the Tribunal, the appellant’s representative also claimed that the appellant feared persecution if he were to return to Bangladesh on the grounds that he was a member of a family unit of BNP supporters, and also a member of a social group, namely, Bangladeshi ship deserters.

the tribunal

7    Before the Tribunal, the appellant gave evidence and relied upon a number of documents to support his claims. Relevantly, there were a number of supporting letters from officials in the BNP and a hospital discharge form supporting his claim to have been hospitalised in Sandwip in January 2008 for “assault injury”.

8    The Tribunal rejected the appellant’s claims to have been subject to threats, attacks and other harm in Bangladesh on credibility grounds. Of particular relevance to this appeal is the fact that the Tribunal placed no weight on the appellant’s documentary evidence because the Tribunal rejected the appellant’s oral evidence of his version of the events which he said caused him to entertain a fear of persecution if he was to return to Bangladesh. In short, the Tribunal found that the appellant’s version of events was implausible and inconsistent with the activities actually engaged in by the appellant. Further, the Tribunal found that a witness, Mr K, who the appellant had called in support of his claims, had deliberately lied to the Tribunal.

the federal circuit court

9    The appellant brought an application for judicial review in the Federal Circuit Court. The appellant relied upon three grounds of review. On 7 March 2014, the Federal Circuit Court dismissed the appellant’s application for judicial review.

the appeal

10    The appellant has set out seven grounds of appeal in his notice of appeal.

The first ground of appeal

11    The first ground of appeal, in effect, is that the primary judge erred in failing to find that the Tribunal had fallen into jurisdictional error in not finding that he was a victim of persecution for his political beliefs as a member of the BNP. This ground of appeal does not address any specific ground of review before the primary judge.

12    Further, on the face of it, it appears to be an attack upon the decision of the Tribunal to reject the appellant’s evidence that he was the subject of attack by supporters of the Awami League and had been threatened by the police and the RAB. The Tribunal’s decision to reject the appellant’s claim to have been the victim of politically motivated violence, was based on the adverse view which it took of his credibility. The making of findings in respect of the appellant’s credibility was squarely a matter within the jurisdiction of the Tribunal.

13    This ground of appeal is dismissed.

The second ground of appeal

14    The second ground of appeal appears to complain that the primary judge ought to have found that the Tribunal acted in a procedurally unfair manner in finding that the appellant was not a credible witness.

15    There was no ground of review founded on an allegation that the Tribunal failed to accord the appellant procedural fairness before the Federal Circuit Court. Nor does the ground of appeal articulate the basis on which the Tribunal is said to have failed to accord the appellant procedural fairness.

16    In his oral submissions at the hearing before the Court, the appellant complained that the Tribunal had given his documentary evidence no weight in rejecting his claim that he had been the victim of violent physical abuse on the basis of his political beliefs and that his life was in danger in Bangladesh. I will deal with this complaint under the fourth ground of appeal. However, as the appellant did not identify any grounds for a complaint based on a denial of procedural fairness by the Tribunal, this ground of appeal is dismissed.

The third ground of appeal

17    The third ground of appeal complains that the primary judge erred by not finding that the Tribunal failed to give the appellant a reasonable opportunity to respond to evidence in its possession that suggested that the appellant would not be a victim of harassment for his political beliefs.

18    There was no ground of review specifically complaining of a denial of procedural fairness by the Tribunal in the terms alleged. However, I have construed this ground of appeal to be the ground pursuant to which the appellant sought to ventilate the second of the complaints which he made in the oral hearing before this Court, namely, that in rejecting his claim to fear persecution on his return to Bangladesh, the Tribunal ignored evidence of the reality of political violence which prevails in Bangladesh. A complaint to this effect formed a ground of review before the primary judge.

19    The primary judge dealt with that ground of review. The primary judge observed that the appellant’s representative had put country information before the Tribunal which referred to political violence in Bangladesh in relation to BNP members. The primary judge included in his reasons for decision, a number of paragraphs from the Tribunal’s decision record which demonstrated that the Tribunal was aware of this country information and had taken it into account.

20    However, the primary judge found that whilst the Tribunal was conscious of this country information, it did not reject that country information. Rather, the Tribunal based its decision on the specific circumstances of the appellant. In other words, the Tribunal having rejected the appellant’s evidence that he had suffered the politically motivated harm which he had alleged, the Tribunal concluded that the appellant, as a low profile member of the BNP, had been able to, and if he returned to Bangladesh, would be able to, operate as such, without being exposed to violence and threats.

21    The primary judge found that the Tribunal did not err in adopting this approach. In my view, the primary judge did not err in coming to that view.

22    This ground of appeal is dismissed.

The fourth ground of appeal

23    The fourth ground of appeal complains that the primary judge erred, in effect, in failing to find that the Tribunal had fallen into jurisdictional error by failing to give weight to the documentary evidence which the appellant had provided.

24    It is the case that the Tribunal placed greater weight on the implausibility and inconsistency of the appellant’s oral evidence than it did on the appellant’s documentary evidence. The Tribunal’s approach to the documentary evidence relied upon by the appellant before the Tribunal was the subject of a ground of review before the primary judge.

25    The primary judge gave consideration to the appellant’s ground of review at [36]-[48] of his reasons for decision. The primary judge referred in detail to a number of leading authorities on this issue (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI); Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; Minister for Immigration and Citizenship v SZNSP (2010) 115 ALD 294; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 and SZNWF v Minister for Immigration and Citizenship [2010] FCA 1041) before concluding that the Tribunal had not fallen into jurisdictional error and that it was open, in the circumstances, for the Tribunal to place greater weight on the appellant’s oral evidence than the appellant’s documentary evidence. In my view, the primary judge did not err in coming to that view.

26    During the hearing of the appeal, one of the arguments advanced by the appellant was that the primary judge had erred in not finding that the Tribunal had fallen into jurisdictional error by not investigating the authenticity of the hospital discharge form upon which the appellant relied to verify his claim that he was attacked with a pipe by supporters of the Awami League in January 2008.

27    The Tribunal dealt in detail with the appellant’s claim made during the hearing, that the Tribunal should investigate the authenticity of the hospital discharge form. In response to that claim, the Tribunal referred to the observations of the High Court in SZIAI to the effect that there may be circumstances when the failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertainable, could in some circumstances supply a sufficient link to the outcome so as to constitute a failure to review. However, the Tribunal noted that the steps which would need to be taken to verify the authenticity of the hospital discharge form, took the matter outside of the ambit of the observations of the High Court in SZIAI. The Tribunal said that to verify the hospital discharge form, it would require someone to go to Bangladesh. The Tribunal went on to say that the appellant and his representative effectively agreed that this was the case.

28    The primary judge referred to the approach of the Tribunal in relation to this issue and found that the Tribunal had not fallen into jurisdictional error in the manner in which it had dealt with this issue. In my view, the primary judge did not err in coming to that view.

29    This ground of appeal is dismissed.

The fifth ground of appeal

30    The fifth ground of appeal contended that the primary judge erred in not finding the Tribunal had erred in finding that the appellant did not have a genuine fear of persecution for a Convention reason. This ground of appeal does no more than attack the ultimate factual finding of the Tribunal. There was no ground of review making that contention. Further, such a contention calls for an impermissible merits review.

31    Accordingly, this ground of appeal is dismissed.

The sixth ground of appeal

32    The sixth ground of appeal also alleged that the primary judge erred in not finding that the Tribunal fell into jurisdictional error in failing to find that there was a real chance that the appellant would be subjected to politically motivated harm if he was to return to Bangladesh.

33    This ground of appeal appears to raise the same complaint to which I referred in dealing with the fifth ground of appeal.

34    For the same reason as mentioned in relation to that ground, this ground of appeal is dismissed.

The seventh ground of appeal

35    The seventh ground of appeal is that the primary judge erred in not finding that the Tribunal failed to consider that the appellant was discriminated against for his political beliefs.

36    There was no ground of review before the primary judge based on any specific allegation or claim that the appellant would be the victim of discrimination, as distinct from the rest of his claim.

37    To the extent that this ground of appeal may be construed as a complaint that there was a failure by the primary judge and/or the Tribunal to address complementary protection, I observe that the primary judge specifically observed at [60] of his reasons for decision that there was no ground of review to that effect. However, the primary judge, nevertheless, went on to observe that the Tribunal had addressed this issue in some detail.

38    Accordingly, this ground of appeal is dismissed.

39    It follows that the appeal is dismissed with costs.

Associate:

Dated:    15 August 2014