FEDERAL COURT OF AUSTRALIA

SZUTE v Minister for Immigration and Border Protection [2015] FCA 231

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1    The applicant seeks leave to appeal from a decision of the Federal Circuit Court of Australia (“FCC”) delivered on 5 December 2014: SZUTE v Minister for Immigration and Border Protection [2014] FCCA 2927. In that decision, the FCC judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”). The decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) and was, therefore, interlocutory in nature: see r 44.12(2) of the FCC Rules. Accordingly, leave to appeal from the decision is required: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

Background

2    The applicant is a male citizen of Bangladesh. He arrived in Australia holding a business visa (short stay) on 13 January 2013.

3    The applicant applied for a Protection (Class XA) visa on 24 January 2013.

4    The application was refused by a delegate of the first respondent (“Minister”) on 19 July 2013.

RRT

5    The applicant applied to the RRT for review of the delegate’s decision. He appeared before the RRT on 11 June 2014 to give evidence and present arguments, assisted by a Bengali interpreter. The RRT also received oral evidence from the applicant’s wife by telephone from Bangladesh.

6    The RRT made its decision on 24 June 2014, affirming the decision not to grant the applicant a Protection (Class XA) visa. In essence, the RRT did not believe the applicant’s claims. It concluded that:

(1)    The applicant’s credibility was so seriously undermined that there was no credible or trustworthy evidence before it upon which to make a finding that the applicant was a Convention refugee or that he was a person in respect of whom Australia owed protection obligations;

(2)    The security situation in Bangladesh was not such that the applicant had a well-founded fear of persecution for a Convention reason due to the general security situation;

(3)    The applicant was not credible in relation to his claimed affiliation, role and profile in the Bangladesh Nationalist Party (“BNP”) or its Jubo Dal (youth wing), that he faced harassment and/or serious harm at the hands of the Awami League or the authorities in Bangladesh or that he was of adverse interest to any potential agents of harm for a Convention reason in Bangladesh;

(4)    Given that the applicant was not credible in relation to his claims regarding his claimed BNP affiliation, or relating to harm faced by him for this reason, there were no substantial grounds for believing that there was a real risk that he would face significant harm in Bangladesh;

(5)    It was not satisfied that the applicant was a person in respect of whom Australia has protection obligations and therefore the applicant did not satisfy the criteria set out in s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (“Migration Act”) for a protection visa.

7    The RRT decision record notes that, at the commencement of its hearing, the applicant provided “purported court documents relating to charges against him and a purported related conviction together with letters of support from the BNP” (“applicant’s documents”).

8    The applicant’s documents comprise:

(1)    A letter in Bengali script with an accompanying translation dated 20 May 2014 addressed “To whom it may concern” from Md Amjad Hossain, Secretary, Bangladesh Nationalist party, Munshigonj Thana Branch, Munshigonj, Bangladesh;

(2)    A document which appears to be an English translation of a letter addressed to the officer in charge, Munshiganj Sadar PS, entitled “Regarding filing of Ezahar”;

(3)    A second document which also appears to be an English translation of a letter addressed to the officer in charge, Munshiganj Sadar PS, entitled “Regarding filing of Ezahar”;

(4)    A third document which appears to be an English translation of a letter dated 20 May 2014 addressed “To whom it may concern” from Md Amjad Hossain, Secretary, Bangladesh Nationalist party, Munshigonj Thana Branch, Munshigonj, Bangladesh. This letter is in slightly different terms to the first letter dated 20 May 2014;

(5)    A letter in Bengali script with an accompanying translation dated 22 May 2014 addressed to the applicant from Abdul Razzek Miah, MA, LLB Advocate, Judge Court Munshigonj, Layers (sic) association Bhaban, Munshigonj;

(6)    A document which purports to be a translation of a judgment of proceedings in which Abdul Razzak Miah represented the applicant;

(7)    A document which purports to be a translation of a “warrant of punishment” dated 5 July 2012 concerning the applicant;

(8)    A document which purports to be a translation of an “order sheet” in proceedings brought against the applicant;

(9)    A second document which purports to be a translation of an “order sheet” in proceedings brought against the applicant;

(10)    A document which purports to be a translation of a “complain sheet”;

(11)    A document which purports to be a translation of a warrant for the applicant’s arrest ordered on 5 July 2012.

9    The RRT found that these documents were not genuine or reliable and gave them no weight, saying:

Given its finding that the applicant is not credible, is not affiliated with the BNP and is not credible in relation to the claimed harm faced by him in Bangladesh, and the timing of the provision of the documents in support of his claim, the Tribunal finds all documents submitted by the applicant in support of his claim not to be genuine or reliable and gives them no weight.

10    The RRT also said:

The Tribunal does not accept any of the documents submitted by the applicant in support of the merits of his application to be genuine or reliable. They are filled with typographical errors and contain information at odds with the applicant’s evidence in relation to his claimed affiliation with the BNP. It finds that these documents are not genuine or reliable and gives them no weight.

FCC

11    By application filed on 16 July 2014, the applicant sought judicial review of the RRT's decision. He filed an amended application on 21 November 2014. The grounds of the amended application are set out in full at paragraph 7 of the reasons of the FCC judge. Omitting the particulars of each ground, they are expressed as follows:

1.    In making decision, the [RRT] acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations…;

2.    … the [RRT] made a jurisdictional error when it failed to identify accurately social group. The [RRT] intentionally asked several irrelevant questions to undermine and to confuse the applicant during the hearing. the applicant claims that he was denied procedural fairness when the [RRT] did not follow the Hearing Rules under the [Migration Act];

3.    …the [RRT] repeated same types of questions to discredit the applicant’s evidence. The applicant…was denied procedural fairness when the [RRT] did not conduct the interview in a Judicial manner;

4.    …The [RRT’s] finding of reasons is confused and the test for persecution was not applied according to the Rules of the [Migration Act];

5.    The [RRT] failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the [Migration Act]. The [RRT] made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

12    The particulars do not correspond precisely to the grounds of the application. For example, although the first ground of appeal refers to the RRT’s alleged failure to take into account relevant considerations, the particulars include a complaint that the RRT asked “unreasonable and irrelevant questions with regards to affiliation with the BNP party”. The particulars to the first ground of the application show that the applicant was aware that the RRT had formed an adverse view of his claims and had found that his evidence was “not credible”.

13    The applicant appeared in person at the FCC hearing with the assistance of an interpreter.

14    The matter was listed for a hearing pursuant to r 44.12 of the FCC Rules, which required the FCC judge to consider whether she was satisfied that the applicant had raised an arguable case for the relief claimed.

FCC judge’s reasons

15    The FCC judge considered the various matters identified in the amended application and concluded that no jurisdictional error was apparent on the face of the RRT’s decision record and none had been identified by the applicant at the hearing. Accordingly, her Honour was not satisfied that the application or the amended application had raised an arguable case for the relief claimed.

16    As to the first ground of review, the FCC judge concluded that the applicant appeared “to cavil with various adverse findings made by the [RRT] about the applicant’s evidence.” Her Honour found, based on the RRT’s decision record, that the applicant’s claims had been explored with him by the RRT but, ultimately, the RRT found the applicant not to be credible. For example, the RRT found the applicant’s evidence to be “shallow, evasive and circular”.

17    Her Honour noted that the Tribunal had given no weight to the applicant’s documents and, in fact, found them not to be genuine. Her Honour also noted that the RRT had found the applicant’s claims to fear harm because of his political opinion and his evidence in support of those claims to be confused and contradictory.

18    Her Honour concluded that there was nothing on the face of the RRT’s decision record to suggest that its finding and conclusions were not open to it on the evidence and material before it, and for the reasons it gave including its adverse credibility findings. Her Honour noted that the RRT was not required to accept uncritically all claims and evidence before it, and that the RRT did not have to possess rebutting evidence before holding that a particular assertion was not made.

19    Her Honour did not identify any particular matter that was alleged by the applicant to involve a failure by the RRT to take into account a relevant consideration. Her Honour noted that the applicant had complained that the RRT asked unreasonable and irrelevant questions which the applicant identified as “how much money he had or how much land he had”. Her Honour concluded that, without more, even if those questions were irrelevant, they did not by themselves establish any jurisdictional error on the part of the RRT. Accordingly, her Honour concluded that ground 1 did not raise an arguable case for the relief claimed.

20    As to the second ground of review, the FCC judge noted that there was an assertion that the RRT failed to consider whether the applicant was a member of a particular social group and that the applicant was denied procedural fairness, and referred to unparticularised irrelevant questions. Her Honour noted that the applicant said that he needed time to prepare to make submissions in support of ground 2 and that he had not had the assistance of an interpreter at an earlier directions hearing to explain to him the orders and directions made by the Court on that occasion. Her Honour set out certain matters concerning the applicant’s access to an interpreter and then addressed the substance of ground 2. Her Honour concluded that:

(1)    The applicant did not claim to fear harm by reason of being a member of a particular social group, but rather because of his affiliation with the BNP and because of the political opinion with which he would be imputed as a result of that affiliation;

(2)    The asserted irrelevant questions were not identified;

(3)    A fair reading of the RRT’s decision record “and the conduct of the [RRT]’s review” does not suggest that there was any denial of procedural fairness to the applicant. The decision record did not support the allegation that the RRT asked irrelevant questions to undermine and confuse the applicant during the hearing;

(4)    The applicant could have tendered a transcript of the RRT hearing but did not do so;

(5)    Accordingly, ground 2 did not raise an arguable case.

21    As to the third ground of review, the FCC judge observed that claims of bias on the part of the RRT were serious and required evidence. The applicant was given an opportunity to adduce evidence, but did not do so. Her Honour said that it is a “rare and exceptional” case where bias can be demonstrated solely from the published reasons of a decision. The mere fact that the RRT made adverse findings in respect of the applicant did not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion.

22    The FCC judge concluded that a fair reading of the RRT’s decision did not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” referring to Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [69], [71]-[72] and [127]. Further, her Honour concluded that a fair reading of the RRT’s decision did not appear to suggest that the RRT approached its task other than with a mind open to persuasion. There did not appear to be any evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review.

23    Accordingly, the FCC judge concluded that ground 3 did not raise an arguable case for the relief claimed.

24    As to the fourth ground of review, the FCC judge recorded the applicant’s submission to be that what he had told the RRT was all true. Her Honour said that the particulars in support of ground 4 appeared to cavil with findings made by the RRT and to misconceive the adverse findings made by the RRT in respect of the applicant’s credibility. Her Honour concluded that ground 4 did not raise an arguable case for the relief claimed, saying:

In circumstances where the Tribunal expressly rejected the applicant’s claim to be affiliated at all with the BNP or to suffer harm for any reason related to the BNP, the applicant’s assertion that the test of fear of persecution applies whether the victim has a low profile or a high profile is irrelevant. Again, ground 4 appears more to be in the nature of a disagreement with the findings and conclusions of the Tribunal and therefore invite merits review which this Court can not undertake.

25    As to the fifth ground of review, that the RRT failed to apply correctly the complementary protection provision in s 36(2)(aa) of the Migration Act, the FCC judge said that the particulars in support of the allegation did not identify how the RRT had failed to apply the correct test. There was nothing on the face of the RRT’s decision record to suggest that its findings were not open on the evidence and material before it, and for the reasons it gave. Her Honour concluded that the RRT’s conclusion that the applicant was not a person who met the criterion in s 36(1)(aa) of the Migration Act appeared to be open to it, for the reasons it gave.

Principles governing leave to appeal

26    The principles governing the grant of leave to appeal are well established. Although each case must be considered on its merits, generally an applicant for grant of leave must establish that:

(a)    in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(b)    substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 at [2]; (1991) 33 FCR 397 at 398–400 (“Décor Corporation”); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 (“Johnson Tiles”) at [44]; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]–[30].

27    Leave will be more readily granted where an interlocutory decision determines a substantive right, rather than a mere point of procedure: MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1075 at [12], citing Décor Corporation at 400 and Eltran Pty Ltd v Westpac Banking Corporation [1988] FCA 398; (1988) 32 FCR 195 at 202.

28    In Johnson Tiles, French J (as he then was) said at [43]:

If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However, leave will usually be granted in such a case if there is any doubt about the decision at first instance – Little v Victoria [1998] 4 VR 596 at 598-600 and 601 (Callaway JA, Buchanan JA agreeing).

Is the FCC decision attended by sufficient doubt to warrant reconsideration?

29    The FCC judge dismissed the application because she was not satisfied that the application has raised an arguable case for the relief sought.

30    In other contexts, an appeal against a finding 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] HCA 40; (1994) 181 CLR 201 especially at 210-212; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 especially at [19], [27], [32] and Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 at [27].

31    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 FCC judge:

a.    Acted upon a wrong principle;

b.    Allowed extraneous or irrelevant matters to guide or affect her;

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 R [1936] HCA 40; (1936) 55 CLR 499 at 504-505.

Grounds of application for leave to appeal

32    The stated grounds for the application for leave to appeal are:

(1)    The RRT “decided claim in taking irrelevant consideration and the decision on assertion and the trial judge erred not taking into account to these issues”;

(2)    The applicant’s “country of origin experiencing everyday abuse of human rights and serious violation of civil rights but trial judge erred not to considering the country information”;

(3)    The RRT “took the irrelevant consideration in deciding claim and failed to attain the procedural fairness. The trial judge failed to take this into consideration”.

33    is the applicant also filed a draft notice of appeal which specifies grounds of appeal identical to those in the application for leave to appeal.

Applicant’s submissions

34    The applicant filed written submissions which raised the following issues:

(1)    Whether the RRT’s finding that the applicant had not been involved in politics in Bangladesh arose from a lack of knowledge on the part of the RRT; and

(2)    Whether the RRT unreasonably failed to accept the applicant’s documents as genuine and reliable.

35    As to the applicant’s documents, the applicant submitted:

It is contended that the material submitted to the [RRT] was the only and overwhelming evidence relating to the [applicant’s] claim and the [RRT] was under an obligation to have due regard to it before dismissing it, in a fleeting way, as embellishment. Regarding the veracity of the applicant’s claims of persecution in Bangladesh does not obviate the need to consider a separate claim. As argued, the material not considered by the [RRT] was directly relevant to a critical issue of the [applicant’s] claim such that the failure to deal with it is a jurisdictional error. The [RRT] made irrelevant consideration but failed to consider the integer of claim.

36    The applicant also made the following two written submissions:

    The RRT committed jurisdictional error because of its “failure to deal with a matter of relevance sufficiently or adequately in the particular circumstances of this case, where Bangladesh government is violating all sorts of human rights. The utility in remitting the matter to the [RRT] to be considered according to law is that until the [RRT] has properly turned its mind to the document and not considering the country information”;

    “The [applicant] was failed to attend procedural fairness because of his review with the [RRT] was not properly assessed or give weight or verify the documents.”

37    At the hearing of the application, the applicant appeared unrepresented but was assisted by a Bengali interpreter. He declined to make any oral submissions.

Consideration

First proposed ground of appeal

38    Reading the applicant’s written submissions together with the draft notice of appeal, the complaint is that the FCC judge failed to identify the RRT’s errors concerning the applicant’s involvement in politics in Bangladesh and the RRT’s unreasonableness in failing to accept the applicant’s documents as genuine and reliable.

39    The applicant did not identify any error of a kind that could amount to jurisdictional error. The RRT did rejected the applicant’s claims to have been involved in politics in Bangladesh by reference to its assessment of the applicant’s evidence as lacking in credibility. The RRT’s conclusion that the applicant’s documents were not genuine or reliable was based on several matters, being its assessment that the documents were not credible on their face (being “filled with typographical errors” and containing information “at odds with the applicant’s evidence”), the fact that the documents were produced by the applicant whom the RRT had found not to be credible, and the timing of the production of the documents (being after the original protection visa application and the delegate’s refusal of that application).

40    The solicitor for the first respondent, Mr Markus, submitted that this was a case where the applicant had poisoned the well by his lack of credibility: cf Re Minister for Immigration and Multicural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (“S20/2002”) at [49].

41    The weighting of various pieces of evidence is a matter for the Tribunal: Abebe v Commonwealth [1999] HCA 14 at [197]; (1999) 197 CLR 510 at 580 and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 176 (“SZJSS”). Without more, a failure to accord any weight to a piece of evidence does not give rise to jurisdictional error: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 (“SZNSP”) at [34] citing Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611. Even if the RRT errs in giving no weight to certain evidence that will not necessarily require a conclusion that the result in the RRT committed jurisdictional error: SZJSS at [37].

42    In SZNSP, a Full Court held that, having found that that the applicant was not a witness of truth, and that the account of events on which his protection claims was based was false, the RRT was entitled to consider whether the evidence tendered in support of the applicant’s claim had the capacity to affect the RRT’s assessment of the applicant’s credibility: SZNSP at [31]. Thus, it was open to the RRT to assess the applicant’s credit and then, in the light of that assessment, consider what weight should be given to the supporting documents: SZNSP, referring to S20/2002, at [33].

43    In this case, it was open to the RRT to conclude, in view of all the evidence in the case, that the applicant’s documents were not genuine (and thus were not “overwhelming” evidence, as contended by the applicant). Contrary to the applicant’s submission, the material was considered but was rejected. The applicant’s documents are analogous to the witness statement considered by the Full Court in SZNSP, and described by North and Lander JJ (Katzmann J agreeing) at [35] as follows:

The corroborative evidence was not corroborative evidence at all. It did not tend to prove that the first respondent’s evidence was true, nor does it act to strengthen that evidence. Corroborative evidence should be evidence independent of the person whose evidence is sought to be corroborated. It was evidence presented to the RRT by a person whom the RRT was of the opinion was fabricating her claims. The provenance of the witness statement was not established. It could easily have been created by the first respondent herself. It did not amount to corroborative evidence in the absence of proof of the provenance of the document and the reliability of the author.... If the first respondent was fabricating her claims, it would follow that she would fabricate the evidence upon which those claims are brought.

44    In particular, the supporting documents were presented by a person whom the RRT had found not to be a witness of truth. Their provenance was not established and there was no basis for believing that their contents were genuine or otherwise uninfluenced by the applicant: see SZNSP at [50]; WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1580 at [22].

45    Finally, I note that the submission that the RRT failed to consider a separate claim must be rejected. No such separate claim was identified.

46    It follows that I am not satisfied that the first proposed ground of appeal has any prospects of success.

Second proposed ground of appeal

47    The Minister noted that this ground of appeal was not raised before the FCC. The particular country information said not to have been considered by the RRT was not identified. In the absence of any detail of the information allegedly not considered, this proposed ground of appeal has no prospects of success.

Third proposed ground of appeal

48    This proposed ground of appeal appears to concern the RRT’s rejection of the applicant’s documents. As previously explained, in my view, it was open to the RRT to reject those documents. There was no discernible denial of procedural fairness.

49    Accordingly, this proposed ground of appeal also has no prospects of success.

Conclusion

50    The application for leave to appeal must be dismissed. The applicant should pay the respondent’s costs.

Associate:

Dated:    17 March 2015