FEDERAL COURT OF AUSTRALIA

SZTAT v Minister for Immigration and Border Protection [2014] FCA 1264

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant to pay the costs of the first respondent, to be taxed if not agreed.

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 male citizen of Bangladesh, who applied for a protection (class XA) visa on 13 September 2010.

2    The appellant claimed to fear serious harm from the Awami League and other agencies acting on their behalf due to his political activities with the Bangladesh Nationalist Party (BNP). He claimed to have been a local businessman in Sylhet and a member of the BNP since 1996. He also claimed that Awami League members had ransacked his restaurant, attacked him, set fire to his house and made a false claim against him in March 2007, which resulted in him being arrested and detained in April 2007. The appellant said he was subsequently released on bail in May 2007 and further false cases were made against him in June 2007, August 2008 and February 2009.

3    The appellant claimed that in April 2009, he left Sylhet with his family and went into hiding, as the police and Awami League were looking for him. He said he asked his uncle in Australia for help in January 2010 because it was not safe in Bangladesh. In July 2010, the appellant travelled to Australia, while his wife and children returned to Sylhet to live with his parents. He claimed his business was looted and destroyed by Awami League members in August 2010 and that he had met with BNP members while in Australia.

4    On 7 December 2010, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a protection visa.

5    The appellant sought review of this decision before the Refugee Review Tribunal, but this application was refused on 27 March 2012.

6    In a subsequent proceeding for judicial review in the then Federal Magistrates Court on 18 February 2013, the Court made orders by consent to issue writs of mandamus and certiorari, on the basis that the Tribunal had failed to comply with s 425 of the Migration Act 1958 (Cth) (the Act). The Court noted that the appellant had not been afforded the opportunity to give evidence and present arguments on the issue of whether he satisfied the complementary protection criteria in s 36(2)(aa) of the Act.

7    On 13 June 2013, after a hearing on 17 May 2013, a second, differently constituted Tribunal affirmed the delegate’s decision to refuse to grant the appellant a protection visa.

8    The Federal Circuit Court gave judgment on 4 July 2014, dismissing the appellant’s application for judicial review of the Tribunal’s decision. See SZTAT v Minister for Immigration and Border Protection & Anor [2014] FCCA 1432.

9    The appellant appeals from the Federal Circuit Court’s decision.

the tribunal’s decision

10    The Tribunal accepted that the appellant was from Sylhet, that he worked in another restaurant in the early 1990s and operated his own businesses in Bangladesh.

11    However, the Tribunal found that the appellant was not a “witness of truth” and that his claims were “false”. In making adverse credibility findings against the appellant, the Tribunal identified gaps, inconsistencies and other anomalies in his evidence in his written statement, interview with the Minister’s delegate and also in his oral evidence in the hearings before the Tribunal on both occasions.

12    For example, the Tribunal took issue with the appellant’s evidence at the hearing that he had only appeared in court once as a result of his arrest in April 2007. This evidence was inconsistent with documents he provided in support of his claims which indicated he had appeared in court twice. The Tribunal did not accept the appellant’s explanation for this inconsistency and concluded that it was an attempt to “conceal the inconsistency in his evidence”.

13    The Tribunal did not accept the appellant’s explanations for any of the other inconsistencies or anomalies in his evidence, and given its adverse credibility findings, rejected all of the appellant’s key claims.

14    It did not give evidentiary weight to any of the documents provided in support of the appellant’s claims, due to its adverse credibility findings and country information about document fraud in Bangladesh. The Tribunal declined to inquire into the veracity of the documents, despite the appellant’s request at the hearing, on the basis that the credibility findings “overwhelmingly demonstrate” that his evidence was not credible.

15    The Tribunal found that the appellant’s claims to fear harm were all false and there was no credible evidence that he had a well-founded fear of persecution or was at risk of harm in Bangladesh. As such, the Tribunal was not satisfied the appellant satisfied the refugee criterion under s 36(2)(a) of the Act, or that there were substantial grounds for believing he faced a real risk of significant harm to satisfy the complementary protection criterion under s 36(2)(aa) of the Act.

judicial review in The federal circuit court

16     The appellant brought an application for judicial review in the Federal Circuit Court on 10 July 2013. His amended application asserted three grounds of review, namely that the Tribunal:

(1)    failed to assess his credibility cumulatively;

(2)    failed to take into account the country’s political situation; and

(3)    failed to accord him natural justice due to issues with the interpreter at the Tribunal hearing.

17    Particulars of each ground of review were provided.

18    The primary judge dismissed the application. See SZTAT v Minister for Immigration and Border Protection & Anor [2014] FCCA 1432.

19    In respect of the first ground of review, her Honour found that the appellant’s complaints in respect of the Tribunal’s credibility findings were an attempt to engage the Court in impermissible merits review. The primary judge accepted, in light of the Tribunal’s comprehensive adverse credibility findings, that it was open to the Tribunal to proceed on the basis that no corroboration could address its profound credibility concerns about the appellant’s evidence.

20    Further, to the extent the appellant alleged bias on the part of the Tribunal, on the basis that it had set up its mind based on country information and failed to assess the appellant’s credibility, her Honour stated that such a claim is serious, requires evidence and a fair reading of the Tribunal’s decision did not reveal any prejudgment.

21    In respect of the second ground of review, which alleged a failure by the Tribunal to take into account the political situation in Bangladesh, her Honour held that, in part, this claim sought merits review, but otherwise the Tribunal’s findings were open to it on the information before it and for the reasons it gave. Her Honour found that the Tribunal had considered the appellant’s claims in detail and his submissions, but considered that his evidence as to why he was at risk was false. The primary judge held that a fair reading of the Tribunal’s decision record showed that it had considered all evidence and material provided by the appellant. Her Honour found that the Tribunal had put to the appellant country information about the prevalence of document fraud in Bangladesh.

22    As to the third ground of review, her Honour found that the Tribunal’s record of the hearing did not support his assertion that he had initially understood the interpreter, who spoke the common Bangla language, but later did not, and so was denied natural justice by the Tribunal. The primary judge observed that the appellant had not provided a transcript or any other evidence to indicate how the interpretation had been inadequate, such that the Court could be satisfied that the appellant was denied natural justice in the manner considered in SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29]-[32].

appeal to this court

23    The appellant appears to raise one ground in his notice of appeal against the primary judge’s decision, namely, [1], that “[t]he decision of the second respondent was affected by jurisdictional error and the Federal Circuit Court has failed to recognise the substantive issue of migration law and Australia’s obligation towards complementary protection”. In what appears as the particular to this ground, in para (a), the appellant submits that the Tribunal failed to comply with the statutory procedure of conducting a review. It may be however that (a) is intended to raise separate issues.

24     The appellant filed an affidavit on 18 July 2014, attaching the Federal Circuit Court’s decision and orders, as well as written submissions filed 6 November 2014.

25    In his written submissions, the appellant contends that the Tribunal’s decision was not a de novo hearing and it was the Tribunal’s obligation to have the matter heard as a fresh review, not as a second review or continuation of a review. He says the Federal Circuit Court failed to identify this significant issue at the hearing and this generated a breach of procedural fairness.

26    Further, the appellant submits that the Federal Circuit Court erred by accepting the Tribunal’s views on “country information”, which the Tribunal relied on to rule out his evidence, in circumstances where neither the appellant nor the primary judge had seen the document. The appellant says that one can only assume that such country information exists and contains the information to which the Tribunal refers, but under an adversarial system, such assumption itself is a breach of procedural fairness and it is not possible to ascertain the credibility of a document without perusing it.

27    The Minister submits that although this ground of appeal is particularised, nothing is pleaded to explain the manner in which the appellant contends that the Tribunal erred in making its complementary protection findings. Further, no challenge is made to the complementary protection findings such that it could be said the Federal Circuit Court erred in its consideration of these findings.

28    The Minister notes that the appellant appears to take issue with the Tribunal’s second hearing, yet if he seeks to allege that the Tribunal gave undue regard to the first Tribunal’s decision or its findings, such an allegation should have been made expressly and no such allegation was raised before the Federal Circuit Court.

29    If such an assertion is intended, the Minister accepts that the Tribunal listened to the audio recording of the first hearing, but submits the Tribunal put the appellant on notice at the commencement of the hearing that it would assess credibility for itself, albeit making specific reference to the delegate’s decision. The Tribunal then set out, in detail, the evidence before it at the second hearing and made extensive factual findings by reference to that evidence.

30    The Minister refers to the decision of SZHSE v Minister for Immigration and Multicultural Affairs [2006] FCA 1459, where Nicholson J dismissed an allegation that there was an “over reliance” on the factual findings of the previous Tribunal. The Court found that although the Tribunal set out the evidence given to the earlier Tribunal, this was used to explain the development of the application, was not the source of any findings, did not have a constraining effect upon the second Tribunal, and there was nothing in the reasons of the second Tribunal to establish over reliance on these findings.

31    In the Minister’s submission, this case is analogous to SZHSE insofar as there was no particular reliance by the second Tribunal on the previous factual findings of the first Tribunal. The Minister submits that SZHSE makes clear that the presence of references to previous Tribunal findings does not, in itself, constitute error.

32    In response to the appellant’s submissions regarding country information, the Minister submits it is difficult to understand which items of country information the appellant alludes to. The Minister notes that the primary judge found that the Tribunal considered, but did not accept, the country information in the form of newspaper articles submitted by the appellant, and the Tribunal put to the appellant certain country information upon which it relied.

33    In oral submissions made on the hearing of the appeal, the appellant emphasised that before the Tribunal he provided all of his documents and gave truthful and honest evidence. He considered, however, that because the Tribunal thought his documents were all fraudulent, the Tribunal disbelieved everything he said. At the second Tribunal hearing, he felt that the hearing was just a continuation of the first Tribunal at which he was disbelieved. He considered that what he had said about what was happening in his country was not properly regarded in light of the country information that he gave to the Tribunal. He repeated the concern he had expressed to the Tribunal and also the Court below that he would suffer if he were returned to his country.

34    It is important to appreciate that the appeal in this Court is on grounds of law. The question is whether the primary judge erred in her appreciation of the legal requirements that govern the decision-making of the Tribunal. The question before this Court, as indeed before her Honour in the Court below, is not the same as it was before the second Tribunal. It is not a question of whether the Court believes the appellant. The question of the merits of the appellant’s claims was for the Tribunal to consider, but to consider according to law.

35    In that regard, I generally accept the submissions made on behalf of the Minister. The appellant has not made out any relevant legal error in the decision of the Court below.

36    The ground of appeal before the Court is very generally stated, alleging that the decision of the Tribunal was affected by jurisdictional error which the primary judge failed to recognise so far as “the substantive issue of migration law and Australia’s obligation towards complementary protection” are concerned.

37    No particular or submission is directed towards the alleged failure of the primary judge to regard the issue of complementary protection.

38    The question of complementary protection was the basis upon which the decision of the first Tribunal was set aside. But, at the hearing before the second Tribunal that question was specifically addressed. It was not a specific issue raised on the review before her Honour, the primary judge.

39    There is no basis to the submission that the primary judge failed to recognise the substantive issue of migration law and Australia’s obligation towards complementary protection.

40    The grounds of appeal also include a paragraph, which the Minister has construed as a particular to the primary ground concerning complementary protection, which states that the Tribunal failed to comply with the statutory procedure of conducting a review. To the extent that that is intended to go beyond the complementary protection ground, as I think it does, there is no issue identified as to how the Tribunal, and so the primary judge, failed to recognise some jurisdictional error. The submission of the appellant, noted above, is that the Tribunal did not conduct a de novo hearing. But as the primary judge noted, while the second Tribunal had some regard to what had been said by the appellant at the earlier Tribunal hearing, the claims and information provided by the appellant were closely considered, comprehensive adverse credibility findings were made against the appellant and the Tribunal took into account all information before it. The fact that it did not give any evidentiary weight to documentary material provided by the appellant does not, in the circumstances, as explained by the primary judge, give rise to any breach of procedural fairness. Further, the primary judge reasonably found, on the evidence before her, that there was no denial of natural justice at the hearing arising from the use of an interpreter.

41    While, as the appellant submits, the Tribunal did not give any relevant evidentiary weight to the documents he produced, the process of discounting the documents produced was not as the appellant submitted. The Tribunal did not first discount the reliability of the documents produced on the basis of the prevalence of document fraud in Bangladesh, and as a consequence disbelieve everything the appellant had told the Tribunal. Rather, the Tribunal had close regard to the sequence of claims and factual information concerning them, made and provided by the appellant, before considering cumulatively its concerns about the appellant’s credibility. As a result, the credibility findings made by the Tribunal were not reliant upon the Tribunal’s views of the reliability of the documents produced at the hearing before it by the appellant. First the Tribunal did not accept the factual basis of the claims made by the appellant. Then, as a result, it found it was unnecessary for it to make any inquiries into the authenticity of the documents the appellant relied upon as it was unnecessary to rely upon them. In effect, the Tribunal considered the documents could not affect the view it had adopted as to the appellant’s credibility on the facts presented.

42    For the reasons noted above, given by the primary judge, in the particular circumstances of this case no legal error is disclosed as a result of the Tribunal’s reasoning in this way.

43    Further, no error is disclosed by the primary judge accepting that the Tribunal was entitled to rely on country information before it, including as to the prevalence of document fraud in Bangladesh. There was no obligation on the Tribunal, in the circumstances that prevailed, where it did not accept the credibility of the appellant for a variety of reasons, to make its own inquiries as to the authenticity of the documentary materials produced by the appellant. The primary judge did not err in so finding.

44    The primary judge closely considered the reasoning process of the Tribunal and could not detect any jurisdictional error in the approach that it took to its decision-making. Similarly, this Court is unable to identify relevant jurisdictional error in the decision-making of the Tribunal and consequently there is no basis to the submission that the primary judge made any error in dismissing the application before her.

45    For these reasons the appeal should be dismissed.

conclusion and orders

46    For the reasons give above, the Court makes the following orders:

(1)    The appeal be dismissed.

(2)    The appellant to pay the costs of the first respondent, to be taxed if not agreed.

Associate:

Dated:    24 November 2014