FEDERAL COURT OF AUSTRALIA

SZTKV v Minister for Immigration and Border Protection [2014] FCA 903

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.

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

REASONS FOR JUDGMENT

1    The applicant is a citizen of Bangladesh who arrived in Australia on 25 October 2011 on a Subclass 456 visa. The applicant made an application for a protection visa on 23 January 2012.

2    In his application for a protection visa, the applicant stated that he feared persecution if he were to return to Bangladesh because he is an active supporter and member of the Bangladesh Nationalist Party (BNP). The applicant claimed that his cousin was abducted in a case of mistaken identity by Awami League activists who were targeting him in 1996. He also claimed that at a time when he was in hiding, Awami League supporters broke into his house in 1997. Further, he claimed that friends and colleagues in the BNP had been killed because of their political activities and that his son had been threatened by Awami League supporters whilst his son was on his way home from college in 2012. He also claimed that false charges had been filed against him and that a colleague and friend in the BNP was stabbed and died in his arms on 9 October 2011.

3    A delegate of the first respondent refused the applicant’s protection visa application on 13 July 2012. The applicant sought a review of that decision before the Refugee Review Tribunal (the Tribunal).

the tribunal

4    Before the Tribunal the applicant was represented by his registered migration agent. At the hearing the applicant presented a number of documents in support of his claims. These were documents primarily from party officials of the BNP.

5    The applicant gave oral evidence at the hearing. At the hearing, for the first time, the applicant made a claim that his wife and sister had been raped by Awami League members in 1997 when they had broken into his house. The Tribunal found this late claim that his wife and sister had been raped gave rise to concerns that the claim had been fabricated for the purpose of strengthening his protection visa application. The Tribunal raised its concerns about the lateness and authenticity of the claim with the applicant at the hearing. The applicant sought to explain his failure to raise the claim before the delegate as being a case of forgetfulness because “it was a sad thing”.

6    After the hearing, the Tribunal sent a letter to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) whereby it again expressed its concerns about the genuineness of this claim. In response, the applicant forwarded a statement from a person, said to be the applicant’s wife, which referred to the “Majidur cadre conducting a physical outrage upon me”.

7    The Tribunal made strong adverse credibility findings against the applicant founded on the implausibility and inconsistent and unsatisfactory nature of the applicant’s oral evidence. The Tribunal referred to the documentary evidence relied on by the applicant and placed no weight on the documents. The Tribunal found that the documents from Bangladesh, including the statement said to be from the applicant’s wife, were not genuine.

8    The Tribunal dismissed the applicant’s review application.

the federal circuit court

9    The applicant brought an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. The grounds of the review were the following:

1.     The Tribunal made an error in deciding the application particularly in regards to the applicant’s wife and sisters were raped by the cadres of Mojibor Balum of Awami League. This incident was not disclosed by applicant’s wife and sister due to family’s image in society and the Department did not ask any questions regarding this issue. The Tribunal did not provide any weights about the applicant’s evidence. Rather the Tribunal deny its existence without any basis.

2.    The Tribunal made error not asking any questions to the author of the letters submitted by the applicant. Without any investigations or any queries. The Tribunal negated reality of the submitted documents and its genuineness, which is unreasonable and is not maintainable.

3.    The Tribunal made error in relation to the assessment of the threats towards the applicant’s son and where the inconsistent between the Tribunal. The Tribunal failed to disclose the details of the fact.

10    The primary judge summarily dismissed the applicant’s review application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the application did not enjoy any reasonable prospect of success. The primary judge found that the applicant’s grounds did not give rise to an arguable case.

11    The primary judge found that grounds one and three took issue with the fact-finding processes of the Tribunal and his Honour observed that the assessment of the credibility of the applicant’s evidence was a matter for the Tribunal. The primary judge went on to observe that the Tribunal had complied with its obligation to invite the applicant to a hearing and that at the hearing the Tribunal discussed with the applicant its issues in relation to his credibility. Further, the primary judge observed that the Tribunal had fulfilled its obligations under s 424A of the Migration Act 1958 (Cth) to invite the applicant’s comment on the apparent inconsistencies in the oral evidence which the applicant had given to the delegate of the first respondent and to the Tribunal. The primary judge concluded that these two grounds of review invited an impermissible merits review.

12    In relation to ground two, the primary judge found that there was no obligation in the circumstances for the Tribunal to make any inquiries in relation to the genuineness of the documents upon which the applicant relied before the Tribunal. First, said the primary judge, the Tribunal had made “comprehensive” adverse credibility findings in respect of the applicant’s oral evidence. Secondly, said the primary judge, the Tribunal had in fact considered the applicant’s documents on their face, but the content of the documents “tended to add to the Tribunal’s concerns rather than alleviate them”.

the application for leave to appeal

13    The applicant applied for leave to appeal from the decision of the primary judge.

14    The proposed notice of appeal contains the following proposed grounds:

1.    The trial judge erred not to make any assessment in regards to the decision by the second respondent on complementary protection.

2.    The trial judge erred not to consider the country information where the applicant’s country of origin is subject to abusig [sic] human rights.

15    The applicant also filed written submissions.

16    The applicant’s written submissions again complained that the Tribunal had not given any importance to the applicant’s wife’s testimony that she was raped by cadres of the Awami League. The applicant went on to complain that the Tribunal had not given reasons why the letter from his wife was not genuine, nor had the Tribunal raised with the applicant the question of the genuineness of his wife’s evidence. Accordingly, said the applicant, he was denied procedural fairness.

17    Further, the applicant also said that his fear of persecution was genuine, and gave the Tribunal “examples of atrocities by Awami League supporters” but that evidence had been ignored by the Tribunal and the Federal Circuit Court.

18    The applicant also complained that his claim had not been considered by the Tribunal.

19    In addition, the applicant complained in his written submissions that the standard of interpreting in the Federal Circuit Court had been inadequate.

20    At the commencement of the oral hearing before this Court, counsel for the Minister drew the Court’s attention to the fact that the interpreter who was present in Court had advised counsel that he was the same interpreter who had provided interpreting services for the applicant before the Federal Circuit Court.

21    I ruled that notwithstanding the complaint about the standard of interpreting made by the applicant in his written submissions, the matter should proceed. The applicant provided no evidence in support of the assertion that the interpreting services before the Federal Circuit Court had been inadequate. Accordingly, the applicant had failed to demonstrate any interpreting errors, let alone errors of so serious a nature as to undermine the integrity of the hearing before the Federal Circuit Court, and so deprive the applicant of the opportunity of a fair hearing. (See, SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29]-[32].) I also observe that there was no evidence that the applicant had raised the question of poor interpreting services before the Federal Circuit Court.

22    In his oral submissions before the Court, the applicant complained about the credibility findings made by the Tribunal, and the Tribunal’s rejection of his documentary evidence.

23    In my view, the primary judge did not err in dismissing the applicant’s application for judicial review.

24    As the primary judge held, grounds one and three of the applicant’s grounds of review took issue with the factual findings of the Tribunal and, therefore, did not demonstrate any jurisdictional error on the part of the Tribunal. It is well recognised that the assessment of the credibility of a witness and the attendant fact-finding process is a matter which falls squarely within the purview of the Tribunal, such that any error in that regard does not give rise to jurisdictional error. In this case, the Tribunal made particularly trenchant and persuasive credibility findings in relation to the applicant’s oral evidence. At [11]-[34] of the decision record the Tribunal sets out nine reasons for taking an adverse view as to the applicant’s credibility. In light of those findings, it was open to the Tribunal to place weight on the adverse view which it reached in relation to the applicant’s oral evidence, and to place no weight on the documentary evidence provided by the applicant. Accordingly, in my view, the primary judge did not err in dismissing these grounds of review.

25    As to ground two of the applicant’s grounds of review, the primary judge did not err in finding that it was open to the Tribunal to disregard the documentary evidence provided by the applicant, without the Tribunal having to embark upon an inquiry as to whether the documents were genuine or not. There is no duty upon the Tribunal to inquire; although in certain circumstances the failure by a Tribunal to make a simple inquiry which it is open to make, may constitute an indication that the Tribunal has failed to carry out a review (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429). However, this was not such a circumstance.

26    The other matters raised in the applicant’s written submissions did not form part of the grounds of review considered by the primary judge. There is not sufficient merit in any of these complaints to warrant granting the applicant leave to raise those arguments.

27    First, in my view, there was no jurisdictional error arising from the applicant’s complaint that he was denied procedural fairness because the Tribunal did not warn him that it may find that the letter said to be from his wife, was not genuine. This is because the Tribunal made it plain both in the hearing and by means of the s 424A letter that it had concerns about the genuineness of the applicant’s claim that his wife had been raped in 1997. The applicant was alerted to that issue and had the opportunity to comment upon it during the hearing and thereafter. In those circumstances, there was no obligation on the Tribunal founded in procedural fairness, to give the applicant an opportunity to comment upon its prospective finding that the letter was not genuine.

28    An argument similar to that raised by the applicant was rejected by the Full Court in Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427. At [72]-[75], the Full Court observed:

[72]    The applicant was aware that the tribunal was concerned by the absence of documentary evidence to support his claim. The tribunal had informed the applicant that it was unable to make a favourable decision on the information that had been provided to it by the applicant. Further, the tribunal invited the applicant to provide any documents that he wanted the tribunal to consider. When the applicant was invited at the hearing to tell the tribunal why he did not want to go back to Bangladesh, he made no mention of false charges against him. Accordingly, when the applicant subsequently alleged that, before coming to Australia from Singapore, he had heard about a court case being lodged against him in Bangladesh, the tribunal was understandably doubtful: the applicant had not previously mentioned such a case, either in his application for a protection visa or in his submissions to the tribunal.

[73]    The tribunal made it abundantly clear to the applicant that it did not believe the very late claim that he was then making. The tribunal was at first reluctant to give the applicant time to provide further material, because it was of the view that the applicant had made up the claim as he went along. It must have been abundantly clear to the applicant that, even if some documents were provided, the tribunal may not accept them.

[74]    In the circumstances of the present case, the tribunal had given the applicant the opportunity to give evidence and present arguments relating to the issues in relation to the decision under review. There was not an issue as to the authenticity of the impugned documents that were subsequently provided to the tribunal by the applicant. While there may have been an issue, raised by the applicant in the course of the hearing, as to whether there was false charge brought against him in Bangladesh, he had been given ample opportunity to give evidence and present arguments relating to that issue, as the tribunal pointed out to him at the hearing. The tribunal did not believe him. There was no failure to comply with s 425. Further, the rejection by the tribunal of the subsequently provided documents was not information within s 424A. There was no failure to comply with s 424A. There was no failure to comply with the provisions of Div 4 in the tribunal’s conduct of the review of the delegate’s decision.

[75]    There was nothing unfair or unjust in the way in which the tribunal applied Div 4 in its conduct of the review of the delegate’s decision. It follows that the primary judge erred in concluding that the tribunal had committed jurisdictional error in dealing with the review.

29    As to the applicant’s complaint that the Tribunal rejected his claim that he genuinely feared persecution, and had not accepted the country information that he had advanced, that complaint does no more than quibble with the fact-finding process of the Tribunal. This does not disclose jurisdictional error. Further, it is plain from the decision record that the Tribunal did consider the applicant’s claims, and did so in considerable detail. Accordingly, the applicant’s complaint that the Tribunal did not consider his claims is without merit.

30    There is no substance in the first proposed ground of appeal because there was no ground of review before the primary judge which went to complementary protection. Nor is there any substance in the second proposed ground, because it was not the role of the primary judge to assess the country information – that being a function of the Tribunal as part of its fact-finding role.

31    Accordingly, in my view, there is not sufficient prospect of success to warrant granting the applicant leave to appeal from the decision of the primary judge.

32    The applicant’s application for leave to appeal is, accordingly, dismissed with costs.

Associate:

Dated:    22 August 2014