FEDERAL COURT OF AUSTRALIA

SZUYF v Minister for Immigration and Border Protection [2015] FCA 926

THE COURT ORDERS THAT:

1.    The name of the second respondent be changed to the ‘Administrative Appeals Tribunal’.

2.    The application for leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs of the application.

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

EX TEMPORE REASONS FOR JUDGMENT

1    This is an application for leave to appeal from the orders made by a Judge of the Federal Circuit Court dismissing the proceeding pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That decision was an interlocutory decision. It follows that the applicant must demonstrate first that the decision is attended by sufficient doubt to warrant its consideration in this Court.

2    The applicant is from Bangladesh. He claims to fear returning to Bangladesh because he claims to be a homosexual. The applicant gave a detailed explanation to the Tribunal as to the circumstances of his alleged fear. Primarily, the applicant’s claims were that he had been involved in two homosexual relationships in Bangladesh and that, when the most recent one was discovered, he was beaten and banished from his village.

3    The Tribunal accepted independent country information that suggests that homosexuals in Bangladesh are persecuted. However, the Tribunal did not accept that the applicant was truthful in relation to his claimed homosexual relationships, the harm that he claimed to have suffered in Bangladesh or his fears about returning to Bangladesh. The Tribunal gave detailed reasons for coming to its conclusion. It looked to the following:

    the applicant’s evidence in relation to his past homosexual relationships;

    the applicant’s claims to have been beaten and expelled from his local village as a result of his homosexual relationships;

    the documents produced by the applicant in support of his case (which included two letters from the Chairman of Rampal Union Parisad, Md. Mosaraf Hosson Pusti dated 1 October 2012 and 25 October 2012);

    the affidavit signed by the applicant’s father;

    the applicant’s evidence in relation to his claimed homosexual activities in Australia; and

    the circumstances of the applicant’s preparation of his Protection visa application.

4    In short, the Tribunal rejected the applicant’s claims on the basis of credibility. The Tribunal gave detailed reasons in relation to each aspect of the claims, set out above, for coming to its conclusion. For example, the Tribunal concluded, at [27], that ‘the applicant was fabricating his evidence and changing it in an attempt to respond to concerns raised by the Tribunal’. In coming to its conclusion, the Tribunal gave a detailed description of the inconsistencies that it found in the applicant’s evidence.

5    The Federal Circuit Court Judge noted that the Tribunal accepted the independent country information as to persecution of homosexuals in Bangladesh. His Honour also noted that the Tribunal:

    found that the applicant had not been truthful in relation to his asserted homosexual relationships;

    advanced multiple reasons for disbelieving the applicant’s claims about his homosexual relationships; and

    rejected the harm the applicant claimed to have suffered in Bangladesh and his fears about returning there.

6    His Honour concluded that the applicant was unable to establish any arguable case of jurisdictional error on the part of the Tribunal.

7    In his application for leave to appeal the applicant sets out three grounds, as follows:

(1)    Hon Judge DRIVER of the Federal Circuit Court failed to hold that the Tribunal committed jurisdictional error when it failed to use the real test of persecution and harm to assess the applicant’s case as a homosexual in Bangladesh and the Tribunal ignored the issue of the treatment of homosexual in Bangladesh ..

(2)    Hon Judge failed to hold that the Tribunal in making decision did not apply the correct test in relation to the Complementary Protection Visa Provision contained in section 36(2) (aa) of the Migration Act 1958.

(3)    Hon. Judge failed to hold that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction .Raised several irrelevant issues and ignored relevant issues related to his claim

(Errors in the original.)

8    When the case came on for hearing, I asked the applicant what he wished to say in support of his application. In various ways, the applicant’s complaint is that the Tribunal did not believe him, when he said that he was telling the truth. He explains that he could not concentrate before the Tribunal, that he was embarrassed and that he was unable to give more detail to the Tribunal. He says that his complaint was that the Tribunal did not take him as credible.

9    It is clear that what the applicant is really seeking is merits review. It is not for this Court to undertake a review of the merits of the Tribunal’s decision, in particular, the fact that, for the reasons that it gave and that were open to it, the Tribunal refused to believe or to accept the applicant’s claims.

10    I asked the applicant if he could provide any further particularisation of his grounds in the application and he was not able to do so, beyond repeating his concerns as to the fact that the Tribunal did not believe him.

11    Grounds 1 and 2 of the application contend that the Tribunal failed to apply the correct tests. It is clear from a reading of the Tribunal’s decision that the Tribunal set out the correct test in the context of the Convention and in the context of the complementary protection criteria. It is apparent that the Tribunal considered the applicant’s claims and the evidence presented to it, together with the information that it considered relevant in performing its review function.

12    As to the third ground, the applicant was not able to identify any relevant or irrelevant issues as referred to in ground 3.

13    It follows that the applicant has not been able to establish any arguable case of jurisdictional error on the part of the Tribunal or any error on the part of the Federal Circuit Court Judge.

14    It follows that the application for leave to appeal should be refused. The applicant should pay the Minister’s costs.

Associate:

Dated:    21 August 2015