FEDERAL COURT OF AUSTRALIA

SZSWC v Minister for Immigration and Border Protection [2015] FCA 992

THE COURT ORDERS THAT:

1.    The name of the second respondent, “Refugee Review Tribunal”, be amended to “Administrative Appeals Tribunal”.

2.    Leave to rely upon grounds 2 and 3 of the notice of appeal is refused.

3.    The appeal is dismissed.

4.    The appellant is to pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

Introduction

1    The appellant has appealed from a decision of the Federal Circuit Court: see SZSWC v Minister for Immigration & Anor [2015] FCCA 415 (SZSWC). That decision dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a protection visa.

The grounds of this appeal

2    The appellant relies on three grounds, as follows:

1.    The [Tribunal] made an error not providing an opportunity to the appellant about the information which [it] relied in making the decision. The trial judge erred in regards to this issue. The appellant is contending this issue.

2.    The appellant failed to attend the procedural fairness. The appellant filed a number of corroborative evidences which were unvalued unreasonably that rise a jurisdictional error. Honourable trial judge erred this issue. The appellant is contending this issue.

3.    The [Tribunal] failed to comply with the requirements of section 424AA (a) and (b).

(Errors and/or omissions in original)

The factual background

3    The factual background to the appellant’s claims was conveniently summarised in SZSWC, as follows:

[3]    The applicant is a citizen of Bangladesh. He arrived in Australia on 16 November 2011 as the holder of a short term business visa (Class 456) (CB 13). On 8 December 2011 he applied for a protection visa (CB 1 to CB 25).

[4]    The applicant’s claims to protection were initially set out in a Statutory Declaration which accompanied his application (CB 26 to CB 29). The applicant claimed to be a member of a part of Bangladesh’s Buddhist minority and claimed to fear harm from Muslim fundamentalists if he were to return to Bangladesh.

[5]    He stated that he had been active in his community as a businessman and as a religious and political activist. Local Muslim fundamentalists seized land, on which local Buddhists intended to build a Buddhist temple. In the ensuing conflict, his father was killed and his brother was severely wounded.

[6]    The applicant stated that he campaigned, amongst other matters, for the return of the land. He did this as part of his activities as a political, and religious, activist in the Buddhist community.

[7]    In addition to Muslim fundamentalists, he claimed to fear harm from the supporters of a local politician who was opposed to the applicant's activities. He was harassed, threatened and demands of money were made of him. His business was burned down. There was some possibility of the applicant intending to become a Buddhist monk.

4    In October 2012, a delegate of the Minister refused the appellant’s application for a protection visa, primarily because the delegate did not find the appellant to be a credible witness in light of inconsistences and gaps in his evidence, and his apparent lack of knowledge about Buddhism. Given the nature of the appellant’s case before this Court, it is convenient to set out the delegate’s conclusion (cited at [8] of SZSWC):

Overall, and for the reasons outlined above, I am not satisfied that the applicant is a credible witness. There are serious deficiencies in the applicant's claims and testimony. Considered cumulatively, they are so serious that I cannot be satisfied as to the credibility of the applicant. These doubts in relation to the applicant’s claims are not marginal or irrelevant matters but lie at the heart of an assessment of whether the applicant and his family genuinely experienced harm and mistreatment at the hands of Muslim fundamentalists, including members of BNP, Jamat-e-Islami, Harkatul Zihad and Lashker-e-Tayaba. I am not satisfied that the central facts in this case presented by the applicant are consistent, coherent or plausible. As such I do not accept that the applicant or his family were subjected to harm and mistreatment due to involvement in a Buddhist organisation named Sahabdi Nagar Moitry Vihar. I am also not satisfied that the applicant has provided a satisfactory explanation for concerns raised at interview. Consequently, I am not required to give the applicant the benefit of the doubt.

5    In early November 2012, the appellant applied to the Tribunal for a merits review of the delegate’s decision.

The proceeding before the Tribunal

6    The Tribunal invited the appellant to attend a hearing to give evidence and present arguments. The appellant attended that hearing. Prior to the hearing, he provided the Tribunal with written submissions and supporting documentary evidence.

7    In April 2013, the Tribunal affirmed the delegate’s decision. Aside from independent country information, the Tribunal relied upon the appellant’s own evidence to come to its conclusions.

8    The Tribunal accepted that the appellant was a citizen of Bangladesh, that he was a member of a Buddhist minority in that country, and it also accepted some other elements of his claims regarding his family and profession. However, it rejected the majority of his claims because it found him to be an unreliable witness and therefore put little weight on his evidence, including his supporting documentary evidence. This assessment was based on inconsistencies in his evidence, its implausibility in various aspects and independent country information about the widespread availability of forged documents in Bangladesh. Importantly, it found that the appellant had fabricated key claims. It summarised its impression of the appellant as follows (cited at [11] of SZSWC):

… Overall, it found his oral evidence to be vague, changeable and often consisting of broad, uncorroborated assertions …

The decision of the Federal Circuit Court

9    By application filed in the Federal Circuit Court in May 2013, and amended in March 2014, the appellant sought judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth) (the Act).

10    The amended application contained one ground of review, with seven particulars. Before the Federal Circuit Court, the appellant, who was represented by counsel, pressed only four of those particulars. The ground and particulars that were pressed are outlined at [13] of SZSWC, as follows:

1.    The Tribunal, in contravention of s 425 of the Migration Act 1958 (Cth), failed to put the following issues to the applicant and give him an opportunity to comment:

a)    One reason the Tribunal had 'extensive concerns about the applicants claims’ (opening sentence of paragraph 73 of the Tribunal’s decision) was because the Tribunal ‘detected no real interest on [the applicant’s] part in exploring whether there was independent corroboration’ (4th dot point in paragraph 73). The Tribunal failed to put to the applicant the issue or relevance of the applicant’s lack of interest.

b)     Another reason the Tribunal had ‘extensive concerns about the applicants claims’ was because ‘there is no persuasive evidence of anyone else having been seriously affected by’ the dispute concerning the temple land (5th dot point in paragraph 73). The Tribunal failed to put to the applicant the issue or relevance of the absence of evidence of other persons having been seriously affected.

c)    Another reason the Tribunal had ‘extensive concerns about the applicant’s claims’ was because ‘the applicant remained in the local area, claimed to have continued his father’s work ... and ... sold some of his father’s land’ (6th dot point in paragraph 73). The Tribunal failed to put this issue to the applicant.

…

f)    One reason the Tribunal placed little weight on the letter from the gurus at Rangamati CSS and the SNMV was because the applicant ‘appears to have a personal relationship with both men’ (first dot point in paragraph 74). The Tribunal failed to put this issue to the applicant.

11    These four particulars provide examples of the “issues” the appellant claimed were not put to him by the Tribunal. The Federal Circuit Court judge found that the appellant’s credibility “was generally at issue” in this matter and “lay at the heart of [the Tribunal’s] decision” to reject his application: see SZSWC at [36] and [41]. As a result, the appellant was clearly on notice that the entirety of the key elements of his claims were in issue. Accordingly, his Honour concluded that the appellant had not been denied procedural fairness pursuant to s 425 of the Act and dismissed the appellant’s only ground of review. His Honour stated (at [42]):

This is not a case … where the delegate’s, and the Tribunal’s, reasons for decision varied. While there may have been further details provided to the Tribunal, the rejection of the applicant’s key factual account as an issue, was similar. The applicant would have been on notice of that after the delegate’s decision. The evidence before the Court is that the Tribunal sufficiently indicated to him the concerns about the entirety of the key elements of his factual account to fear harm. The applicant has not been denied procedural fairness pursuant to s 425.

Leave required to raise two new grounds

12    The Minister submitted that, because the appellant’s notice of appeal raised two new grounds of appeal (grounds two and three, at [2] above) which were not relied on by the appellant in the proceeding before the Federal Circuit Court, he required leave to rely on those grounds before this Court, relying on MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101]. He submitted that leave should only be granted where it is expedient in the interests of justice to do so. He submitted that was not so in this instance because grounds two and three were “devoid of merit”. Nevertheless, the Minister addressed all three grounds of appeal in his submissions.

13    At the hearing of his appeal, I gave the appellant leave to file a set of written submissions notwithstanding the directions that he was to file such submissions at a much earlier date. The appellant was content to rely upon those submissions, although he did make some oral submissions in reply to the Minister’s submissions, the gist of which was to challenge the adverse credibility findings made by the Tribunal.

Consideration

Appeal ground one

14    As to appeal ground one, the appellant contended in his written submissions that the Tribunal was preoccupied with the reliability of the appellant’s evidence, in particular in relation to its consideration of country information, the prevalence of document fraud in Bangladesh, and its concerns about the appellant’s credibility. In so doing, the appellant contended that he was not given “an opportunity in accordance with the s 424AA(a) and (b) of the Act or s 424A (sic)”.

15    It is clearly apparent from the delegate’s reasons (see at [4] above) and those of the Tribunal (see at [6]–[8] above) that the credibility of the appellant’s claims was in issue before both. That is so, even though a slightly differing list of inconsistencies and evidentiary deficiencies were focused on by each decision-maker. Hence, I consider the appellant was clearly on notice, both from the delegate’s reasons for decision and from the Tribunal’s questions at the hearing, that this was the case. Accordingly, I accept the Minister’s contention that “the appellant could not reasonably have been misled by the [Minister’s] decision that anything else was the case”.

16    On this aspect, the Minister referred for support to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL), as follows:

47    … there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor …

48    …

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

(Emphasis added)

17    I consider that each of the particulars ultimately pressed in the Federal Circuit Court (see at [10] above) comprise information that the Tribunal did not need to put to the appellant under the procedural code prescribed in ss 424A and 425 of the Act. Adopting the terminology used at [48] in SZBEL (at [14] above), I do not think procedural fairness required the Tribunal to give the appellant a “running commentary” on the evidence that he gave to it.

18    I do not therefore consider that the Federal Circuit Court judge erred in any way in his consideration of this issue. His Honour carefully considered the scope of the term “issues” and concluded, correctly in my view, that the appellant’s credibility was generally put in issue by the Tribunal. In relation to the four particulars put to the Court by the appellant, his Honour stated (at [43]):

… It is not necessary to seek to engage in some lengthy consideration as to whether these matters are “issues” in themselves, or are a part of the substratum of facts, relating to the issue, or issues. That is because, even proceeding on the basis that they are “issues”, the applicant would have been reasonably on notice of the Tribunal’s concerns, and was given the opportunity to address them.

19    His Honour did not consider that any of the authorities put to him by the appellant provided a basis for him “to argue that every finding made by the Tribunal [had to be] squarely put to [him] for comment by the Tribunal, or to have specific reference to the delegate’s decision”: see SZSWC at [48]. Despite this conclusion, his Honour proceeded to dedicate some 36 paragraphs of his decision to considering each of the particulars identified by the appellant.

20    I do not therefore consider the Federal Circuit Court judge made any error as claimed by the appellant in appeal ground one.

Appeal ground two

21    In appeal ground two, the appellant contends that he filed “corroborative evidence”, which was “undervalued” by the Tribunal, and he contends that the Federal Circuit Court judge erred in his consideration of this issue. In his written submissions, the appellant contended that the Tribunal did not attribute sufficient weight to his material when it was “under an obligation to have due regard to it before dismissing it, in a fleeting way, as embellishment”.

22    There is a number of answers to these contentions. First, as the Minister pointed out (see at [12] above), this was not raised as a discrete issue before the Federal Circuit Court judge. It is therefore difficult to see how his Honour could be in error in his non-consideration of it. Secondly, to compound this deficiency, in attempting to raise this ground of appeal for the first time before this Court, the appellant has not identified in his notice of appeal what evidence he claims was not considered by the Tribunal. The only example he gave in his submissions was the same example he raised before the Federal Circuit Court in his fourth particular (see particular (f) at [10] above). These two deficiencies are sufficient, in my view, to refuse the appellant leave to raise this ground for the first time before this Court. Nonetheless, I will add the following observations about the merits, or lack of merits, of this ground.

23    First, it was for the Tribunal, as a part of its fact finding function, to identify the material it found to be relevant to its reasoning process and to allocate what weight it considered appropriate to the evidence before it: see Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 (Tran) at [5]–[7].

24    Secondly, even if this had been raised as an issue before the Federal Circuit Court, a failure by the Tribunal to mention or specifically address parts of the evidence supporting a particular claim made by an applicant before it is not a jurisdictional error in the sense that it constitutes a failure to take into account a relevant consideration: see Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 at [79] (cited with approval in Tran at [7]–[8]).

25    Finally, it is apparent from the reasons given by the Tribunal that it described the appellant’s claims and supporting evidence in extensive detail, and also embarked upon a lengthy consideration of them. It is also apparent that the Federal Circuit Court judge gave extensive consideration to the reasons of the Tribunal: see SZSWC at [36]–[79].

26    There is therefore no merit in this ground of appeal.

Appeal ground three

27    In this third ground of appeal, the appellant contends that the Tribunal failed to comply with the requirements of s 424AA(1)(a) and (b) of the Act. These provisions require the Tribunal to give the appellant particulars of any information it considered could be the reason, or a part of the reason, for affirming the decision under review.

28    As with appeal ground two above, this issue was not raised before the Federal Circuit Court judge and the appellant has not provided any particulars of the information to which the requirements in s 424AA(1)(a) and (b) of the Act related. These deficiencies provide ample reason, in my view, for refusing the appellant leave to raise this ground for the first time before this Court.

29    Nonetheless, as with appeal ground two above, I will add these further brief observations about the lack of merits associated with this ground of appeal.

30    In this matter, the Tribunal did not seek to invite the appellant to comment on any information under s 424A, nor did it attempt to put any information to the appellant orally at the hearing under s 424AA of the Act. This approach was open to the Tribunal in circumstances where there was no information which was caught by those provisions. In this respect, it is clear that, however broadly the word “information” may be defined, in the context of these provisions it refers to: “the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18].

Conclusion

31    For these reasons, this appeal must be dismissed with costs.

Associate:

Dated:    9 September 2015