FEDERAL COURT OF AUSTRALIA

SZVMQ v Minister for Immigration and Border Protection [2016] FCA 558

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant 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    This is an application for leave to appeal from a judgment of the Federal Circuit Court.

2    The applicant hails from Bangladesh. He arrived in Australia in August 2013, on a visitor’s visa issued some six weeks earlier. In November of that year he applied to the Minister for a protection visa, claiming to fear harm in Bangladesh from Islamic fundamentalists. That application was refused by the Minister’s delegate and the delegate’s decision was affirmed on review by the Refugee Review Tribunal (the Tribunal, the functions of which are now performed by the Administrative Appeals Tribunal). The applicant then filed an application in the Federal Circuit Court inviting the Minister to show cause why the Tribunal’s decision should not be quashed, no action taken against him, and the Tribunal required to hear and determine his review application afresh. But the court dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCR), which permits the court to dismiss such an application if it is not satisfied that the application raises an arguable case for the relief claimed. The dismissal is an interlocutory decision: see FCCR, r 44.12(2). Consequently, leave to appeal is required: see Federal Court of Australia Act 1976 (Cth), s 24(1A).

3    Like any other visa, a protection visa may only be granted if the Minister (or his delegate or the Tribunal on review) is satisfied, amongst other things, that the applicant for the visa meets the criteria prescribed by the Migration Act 1958 (Cth) and the regulations made under it; otherwise the application must be refused: Migration Act, s 65. The principle criteria for the grant of a protection visa are set out in s 36 of the Act. In the present case, shortly put, the decision-maker was required to be satisfied that the applicant is a non-citizen in Australia in respect of whom Australia has protection obligations because:

(a)    he is a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together the Convention) (s 36(2)(a)); or

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s 36(2A) and (2B) (s 36(2)(aa)).

4    A refugee is relevantly defined in Art 1A(2) of the Convention as a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”

5    According to a summary provided by the Tribunal in its decision record, the basis of the claim for protection is that the applicant is an intellectual from the Hindu minority and was involved in protests in February 2013 organised by the Gonojagoron Moncha movement against Islamic fundamentalism and those who were involved in war crimes and crimes against humanity during the 1971 war of liberation. The applicant claimed that he became a target of the fundamentalists and the Islamic organisation, Jamaat-i-Islami. He asserted that in April 2013 he was violently attacked and robbed and that in a second incident in August of that year an attempt had been made to kidnap him. He also claimed to have received two threatening text messages one day apart in August 2013 referring to his involvement in the February protests. He said that he reported the two incidents to the police but the reports went unheeded. He maintained that the police are corrupt and that the court system does not protect minorities. He professed to believe that he will be killed if he were to return home. He told the delegate that many people were jealous of him and did not want him to practise his profession. He also told the delegate that he had been living in hiding after the second attack. He explained his three month delay in seeking a protection visa once in Australia by saying that he was waiting to see if the torture of Hindus would cease. Various documents were submitted to the Minister’s Department in support of the claims, including identity and academic records, references and birth and marriage certificates, as well as media reports of attacks on members of the Hindu minority.

6    When the applicant appeared before the Tribunal, he additionally claimed that his family owned shop in the village in which they lived had been damaged and looted along with other Hindu-owned shops and that the perpetrators were Jamaat-i-Islami fundamentalists following the passage of judgment (by Bangladesh’s International Crimes Tribunal) on war criminals, including the Vice President of Jamaat-i-Islami, who had been sentenced to death. When asked to explain why he had not mentioned this event before, he claimed that it had not crossed his mind to do so. When he was asked how he knew it was Islamic fundamentalists who attacked him in the two incidents in 2013, he replied that he suspected as much and when asked to identify the basis of his suspicion he said that he practised his profession from his home and they were jealous of him.

7    The Tribunal questioned the applicant about the text messages. The applicant submitted documents of what he claimed were English translations. The Tribunal said that the first message referred “in highly obscene terms” to the applicant being a Hindu, threatened him with death and ordered him to leave the country. It noted that the second also referred to him as a Hindu, who had joined the Gonojagaron Moncha movement, and contained death threats. While the messages mentioned his involvement in the protests, the applicant agreed that he had received them after his involvement in the protests had ceased. The applicant was asked whether he had received any other threatening messages and he replied that he had received two more sent on the same date which he only found on his phone after he arrived in Australia. He said that he had not included them in his protection visa application because he did not know that he should.

8    The Tribunal accepted that the applicant was a national of Bangladesh, a Hindu, and a member of his stated profession. It also accepted his account of his family background, education and employment history. Furthermore, despite the absence of corroboration, the Tribunal accepted the applicant’s account of his attendance at the February protests because it found the account to have been consistent and coherent, with no evident attempt at embellishment. It accepted that members of the Hindu minority, which the information before the Tribunal indicated has traditionally supported the Awami League, were generally perceived as having political opinions in favour of the League and in opposition to the Islamic parties and, as a Hindu, the applicant might have been “generally seen as holding such a political opinion”. But the Tribunal was not satisfied that the applicant had any significant political profile or that he was singled out for attack on that account. Although the Tribunal was satisfied that the applicant had been attacked in 2013, and, generally speaking, in the manner alleged, it was not satisfied that the attacks were “the result of any deliberate, targeted attempt to kill or seriously harm him” and considered that they were most likely “random street crimes”. The Tribunal considered it implausible that the threats (allegedly conveyed by text) would have been levelled at him so long after the protests.

9    The Tribunal was plainly satisfied from independent evidence identified in its decision record that there had been attacks against Hindus and Hindu property at least from time to time during and since the war of independence. Nevertheless, having considered the applicant’s personal circumstances and difficulties he had with the applicant’s account, he was not satisfied that the applicant had ever suffered harm in Bangladesh because of his religion and, on the basis of the material before it, was not satisfied that the situation there has changed since so that if the applicant were to return to Bangladesh his religion would expose him to a greater risk. The Tribunal noted the following matters:

•    As put to him at the hearing, he comes from what appears to be a successful and well-off family. He received an advanced tertiary education and worked in the highly prestigious position of [profession], both in his village and in Dhaka. His brothers received college educations and are employed in his father’s business. The family clearly enjoys a degree of stability and security as his parents and [some] of his brothers continue to live in the family home. He was able to marry and raise a family and his wife and children spend part of their time with his parents and at other times live in rented accommodation in Dhaka. While he claims to have suffered discrimination – the details of which he has not clarified – I am not satisfied that this can have been at a significant level given the apparently privileged life he has led.

•    He does not claim ever to have experienced physical harm in Bangladesh apart from the two incidents in 2013 which he mentions. As noted, I accept that these incidents did occur and I do not underestimate the frightening and lasting impact they would have had on him. Nevertheless, I am not satisfied that they occurred as a result of his being targeted in any way (although it is possible that he may have appeared to his assailants as a person who was likely to have money or items worth stealing) or that his Hindu religion was a relevant factor. I am not satisfied that these were more than random acts of criminal violence and I do not accept that they point to his being at particular risk of similar harm in future. Nor, as noted, am I satisfied that any significant evidentiary weight can be placed on the messages said to have been sent to him on his mobile telephone in August 2013. He does not claim ever to have received threatening messages before or after this.

•    While I accept that he did practise [his profession] in his [village], there is nothing in the information before the Tribunal to explain how this may have excited jealousy of him as a Hindu among Islamic fundamentalists. His claims in this area are notably vague. He has not identified any particular persons who were jealous of him for performing such services. Nor does he explain how he knows that anyone was, in fact, jealous. He has not pointed to any incident in which he was harmed, threatened, abused or even criticised for practising as a [professional] or, more generally, for occupying a position of high status as a Hindu. It would be reasonable to expect him to be able to identify such reactions if they had, in fact, occurred given that they would offer direct support for his claim to fear harm as a Hindu. In the absence of any such evidence I am unable to be satisfied that such jealousy did exist.

10    The Tribunal accepted that for Hindus in Bangladesh there is likely to be a considerable overlap between claims of harm for reasons of political opinion and religion, that Hindus are likely to be imputed with a political opinion (in opposition to Islamic fundamentalism) and that this “may provide an element, added to religious grounds and economic issues, in the motivation for attacks on them”, which “[i]t is not easy, or perhaps possible, to disentangle”. But having considered the applicant’s claims both individually and cumulatively and his personal circumstances the Tribunal was not satisfied that there was a real chance that he would suffer serious harm because of his political opinion or his Hindu religion should he return to Bangladesh. There being no claim to fear harm for any other Convention reason, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to Bangladesh and for the same reasons it was not satisfied that he faces a real risk of significant harm. Consequently, the Tribunal was not satisfied that the applicant satisfied the principal criteria for the grant of a protection visa.

11    The grounds in support of the show cause application were in the following terms:

1.     The Tribunal did not give any weight to the supporting documents which I lodged before the Tribunal in support of my claims.

2.     The Tribunal failed to uphold my natural justice.

3.     The Tribunal failed to exercise its jurisdiction under the Migration Act.

12    The primary judge described these grounds as “general and formulaic”. He said that in the absence of further particulars they do not establish error by the Tribunal and should therefore be dismissed. According to the reasons for judgment, the only submission made to the primary judge in support of them was concerned with the merits of the decision. The transcript of argument was not before this Court, so it is impossible to verify whether this is correct. Be that as it may, it was for the applicant to adduce any such evidence and, in its absence, there is no basis for this Court to question his Honour’s characterisation.

13    In relation to the first ground the primary judge referred to documents purporting to include the text messages the applicant claimed had been sent to him in August 2013 and a letter from the applicant to the police station in Dhaka reporting a threatening incident on 7 August 2013. His Honour said that the Tribunal expressly considered the two documents at [20] and [12] and that it was for the Tribunal to determine the weight it gave to this and all other information it relies on. His Honour noted that the applicant had furnished other documents to the Tribunal relating to his study of medicine and that not all of them were mentioned in its decision record but, as the Tribunal accepted that he worked as a medical professional, nothing turned on that.

14    As for grounds 2 and 3 his Honour said that “[t]he allegation of a breach of natural justice lacks meaningful content” and that it was apparent that the Tribunal exercised its jurisdiction. He said that on his own perusal of the available material he was unable to discern any arguable case of jurisdictional error and the applicant had not advanced any. Consequently, his Honour dismissed the application, ordering the applicant to pay the Minister’s costs.

15    The Minister submitted that leave to appeal should be refused, on the basis that in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 the Full Court held that an applicant is required to show that there is sufficient doubt about the correctness of the judgment below to warrant its reconsideration on appeal and that substantial injustice would result if leave were refused supposing the judgment were wrong, and these two conditions were not made out in the present case. The submission as put is apt to mislead. The Full Court was concerned to emphasise that these principles applied in “the general run of cases” in which leave to appeal from an interlocutory decision is sought (at 399) but that to lay down any rigid rules would be contrary to the “unfettered discretion” given to the Court by s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The Full Court observed that there will be cases which raise special considerations. Furthermore, where the practical effect of the primary judge’s decision is to finally determine the applicant’s substantive rights, the Full Court noted (at 400) that leave will more readily be granted. That said, however, here the application raises no special considerations and, notwithstanding the practical effect of the primary judge’s decision, leave to appeal should be refused because the application discloses no reasonably arguable case of error and to succeed on appeal the applicant would have to persuade the Court that the opinions and conclusions of the primary judge were wrong: Branir v Owston Nominees (No 2) Pty Limited (2001) 117 FCR 424 at [22], [30] (Allsop J, Drummond and Mansfield JJ agreeing at [1] and [2] respectively).

16    The single ground upon which leave was sought reads “[t]hat the Federal Circuit Court made an error in finding that there is no jurisdictional error”. The draft notice of appeal accompanying the application is in the same terms. In his supporting affidavit, the applicant complains that the court did not give any weight to his supporting documents and that it “failed to uphold [his] natural justice”. No written submissions were filed and, despite being given an opportunity to do so, the applicant filed no evidence to justify the allegation that he was denied natural justice either by the court below or the Tribunal.

17    The first complaint, at least, reflects a fundamental lack of understanding of the limited nature of the jurisdiction of the Federal Circuit Court conferred by s 476(1) of the Act. As Hayne, Kiefel and Bell JJ explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [46], that subsection equates the jurisdiction of the Federal Circuit Court with the jurisdiction given to the High Court under s 75 of the Constitution and the remedies provided by s 75(v) are only available for jurisdictional error. Difficulties sometimes arise in drawing a bright line between jurisdictional and non-jurisdictional error but the distinction is an important one. As Hayne J explained it in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163]:

There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

18    This means that an incorrect decision, a wrong decision if you like, on the merits of the case may neither be reconsidered nor set aside by the Federal Circuit Court or, for that matter, this Court: see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [168] (Gummow and Hayne JJ). The weight to be attached to the applicant’s documents was, as the primary judge observed, a matter entirely for the Tribunal. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, to which the primary judge referred, the Full Court, speaking of independent “country information”, said at [11]:

By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.

19    There is no material distinction in this context between country information and information supplied by an applicant. If the Court were to assess the weight to be attached to such information, it would be engaging in merits review, which, as I have explained, it has no power to do.

20    The first proposition, then, is hopeless.

21    So, too, is the second. Like its analogue in the court below, it is devoid of content. At the hearing the applicant submitted that he felt that his case was not considered properly because “the circumstances in Bangladesh are not good for [him] as a Hindu doctor”. He complained that the primary judge should have accepted that what he told the Tribunal was true.

22    These submissions demonstrate that the second complaint is as ill-conceived as the first.

23    In law, natural justice involves two elements: giving a person a reasonable opportunity to be heard before a decision adverse to his or her interests is made and to the right to a decision from an unbiased decision-maker. The Minister submitted, in effect, and I accept, that the applicant was afforded ample opportunity to be heard in the court below. Indeed, the applicant made no complaint in that regard. No suggestion was made that either the judgment of the primary judge or the decision of the Tribunal was affected by bias, whether actual or imputed. Nothing the applicant raised is capable of making out a case of a denial of natural justice. His complaint was that the result was unjust, not the process. He made it clear that what he seeks from this Court and what he sought from the court below is, as he put it, that he be allowed to remain in Australia “on humanitarian grounds”. At this point, however, only the Minister can make that decision.

24    The application for leave to appeal should be dismissed with costs. The primary judge was entitled to exercise the power under r 44.12(1)(a) as the applicant had raised no arguable case for relief. There is nothing to suggest that his Honour’s discretion to invoke the power miscarried. In the circumstances the proposed appeal is doomed to fail. I would add that, whether the Tribunal’s conclusions are right or wrong, its reasoning is sound and, like the primary judge, on the material available to me, I am unable to see that they are affected by any jurisdictional error.

Associate:

Dated:    23 May 2016