FEDERAL COURT OF AUSTRALIA

SZUUO v Minister for Immigration and Border Protection [2016] FCA 913

ORDERS

THE COURT ORDERS THAT:

The 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

COLLIER J:

1    This is an appeal from the decision of the Federal Circuit Court of Australia in SZUUO v Minister for Immigration and Border Protection & Anor [2016] FCCA 849 on 14 April 2016.

2    In summary the appellant, who appears to be a citizen of Bangladesh, had applied for protection under the Migration Act 1958 (Cth) (the Act), but had been the subject of adverse decisions by the delegate of the Minister for Immigration and Border Protection and the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The appellant unsuccessfully sought review of the decision of the Tribunal in the Federal Circuit Court, leading to the appeal currently in this Court.

Background

3    The appellant arrived in Australia on a visitor visa, from Bangladesh, on 14 October 2012. There is some ambiguity as to the correct identity of the appellant, having entered Australian on a passport under another name.

4    On 11 January 2013, the appellant lodged an application with the Department of Immigration and Citizenship (the Department) for a protection (Class XA) visa. In this application, the appellant stated that he used a false name and passport to come to Australia to escape serious problems he faced in Bangladesh because of his political activities and affiliations. The appellant claimed that he and his family were traditionally supporters of the Bangladesh Nationalist Party (BNP) and that in 2009 he became Sports Secretary of the Jatiyatabadi Jubo Dal of Sylhet district (a youth organisation of the BNP).

5    As a result of his connections to the BNP, the appellant claimed that he feared harm from members and supporters of the then opposition, Awami League. He claimed that members of Awami League would come to his grocery store to extort money and goods from him, and that his fears concerning his personal safety crystallised after an incident at his grocery store in May 2012 where supports of Awami League looted and burnt the store.

6    The appellant further claimed that following this attack his father and a friend of his father assisted him to obtain a new passport under an assumed name to help him escape Bangladesh.

7    The appellant’s application for a protection visa was refused by a delegate of the Minister on 11 November 2013.

Decision of the Tribunal

8    The conduct of the Tribunal hearing was described in some detail in the reasons for the Tribunal’s decision. Materially, the Tribunal said:

24.    The applicant appeared before the Tribunal with his adviser… to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant produced to the Tribunal the following documents in the name of … – a Bangladesh driving licence… a national identity card, copies of ID/voter cards, a document dated 20 January 2014 described as from the Acting President of Jatiyotabadi Dal in Sylhet stating that the applicant is known to him and he is the sports secretary of Jatiyotabadi Jubadal in Sylhet District branch, that he is writing the letter because the President whom he names has disappeared, that the political situation is very bad for those in opposition in Bangladesh.

25.    At the Tribunal hearing the Tribunal spoke with the applicant about his identity, his background and his claims and about the documents he produced in support of his claims. The Tribunal allowed the applicant time after the hearing to send further documents and information to the Tribunal in response to the Tribunal’s concerns, including its concerns about his passport and his entry into Australia. Pursuant to s 424AA of the Act the Tribunal discussed with the applicant the document examination report obtained by the delegate which indicates that the applicant’s passport is a genuine passport and also the applicant’s incoming passenger card completed by him on entry to Australia, a copy of which is on the departmental file, in which he indicates that he is the person named in his passport. The Tribunal explained to the applicant why this information is relevant to the review and the consequences of the Tribunal relying on it, namely that it would cause the Tribunal to draw an adverse conclusion about his credibility. The Tribunal invited the applicant to comment or respond to the invitation and gave him time to do so; it adjourned the hearing to give the applicant time to respond in writing and if he wished to do so send further information in support of his claims.

9    The Tribunal said that it received a statutory declaration from the appellant after the hearing in which the appellant said – in summary – that he followed the instructions of his uncle as to what to do when he arrived in Australia.

10    The Tribunal accepted that independent country information supported in a general way the appellant’s claims that there was political violence and conflicts between opposing political parties in Bangladesh and that sometimes those with a political profile were targeted for harm. It also accepted that businesses were sometimes the subject of extortion. The Tribunal accepted that the security situation had deteriorated in Bangladesh. The Tribunal explained however that the Tribunal was required to determine whether the appellant had a genuine fear founded on a real chance of persecution for a Convention reason if he returned to Bangladesh within the meaning of s 36(2)(a), and whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country (in this case Bangladesh) there was a real risk that he would suffer significant harm there within the meaning of s 36(2)(aa).

11    The Tribunal accepted that the passport used by the appellant to enter Australia was obtained by fraudulent means, in order for the appellant to leave his country and to enter Australia. The Tribunal did not however accept that the appellant obtained the false passport so that he could leave Bangladesh without difficulties to escape harm from the authorities/ Awami League/ its supporters because of his political affiliation and profile with BNP as he claimed. The Tribunal also did not accept the appellant’s claims that he left Bangladesh and could not return as he would be harassed, threatened, harmed or targeted by people including Awami League members and supporters or police. In particular the Tribunal did not consider that it was consistent with the appellant’s claims of persecution that he did not inform immigration authorities in Australia about his claims and identity until nearly three months after arriving in Australia and when his visa was about to expire, particularly when he knew that he was safe here.

12    In relation to the appellant’s claimed support of BNP and his claims that he was a member or office holder with a BNP organisation, the appellant could not give meaningful accounts of what he did in support of the BNP. The Tribunal did not accept that the appellant is or was a genuine BNP supporter or that he was of adverse interest to authorities or the Awami League. In particular, the Tribunal observed:

The Tribunal does not accept as true that the applicant has the political profile that he claims to have in his country, including because his father and/or other family members support /hold positions with the BNP. It does not accept as true that the applicant was targeted for harm at any time in Bangladesh including before May 2012 for the reasons that he claims including because he put up posters, attended demonstrations or meetings, including demonstration/s about a leader who was abducted, and/or because of his position as sports secretary …

13    The Tribunal noted questions it had asked the appellant about his activities, and noted that he was unable to give dates or details about many of them. It rejected his evidence that his (or his father’s) business was looted and burned in May 2012, and his evidence of moving residences.

14    The Tribunal concluded that there was no plausible evidence before it that the appellant had suffered persecution in Bangladesh, or that he had a real chance of suffering persecution there because of his political opinion or imputed political opinion, and/or because he was a member of a particular social group, or for any other Convention reason. It followed that the Tribunal was not satisfied, on the evidence before it, that the appellant had a well-founded fear of persecution in Bangladesh within the meaning of the Convention.

15    Finally the Tribunal was satisfied that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh, there was a real risk that he would suffer significant harm for the purposes of s 36(2)(aa) of the Act.

Federal Circuit Court

16    At the review of the Tribunal’s decision in the Federal Circuit Court, the appellant relied on the grounds contained in both his initiating application filed on 23 July 2014 and the amended application filed on 7 December 2015. The grounds relied on are as follows:

Initiating Application

1.    The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League party as an independent claim.

2.    The Tribunal failed to assess my harm on the basis of my support to the BNP.

3.    The Tribunal failed to assess the escalating political violence in Bangladesh since I left in 2012.

Amended Application

1.    In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

Particulars:

AAT unreasonably raised doubt over my involvement with the BNP and my life is in danger. The Department and the Tribunal misunderstood or misconstrued the facts. Migration Advisor for the applicant’s motivation to BNP politics, Applicant’s activities and role in the Party. I was an active and popular activist of BNP.

Applicant claims that there are many BNP leader, worker and also low profile activists are persecuted like me. As I stated earlier that my father business was attacked and looted in the past by the Awami league cadres.

When Bangladesh Political situation for the Bangladesh Nationalist Party became worse, I decided to leave Bangladesh.

I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidences to support my claims.

The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which the applicant was not prepared. He was nervous and confused at the time of making Statutory Declaration and also at the time of interview with the Department and Lawyers who helped him to prepare the application.

The Tribunal raised the question about telling these things now, and raised the question why I did not mention earlier in the Statutory Declaration with the Original Application.

For the protection of my life I leave Bangladesh to Australia with other person name and passport. The tribunal member did not believe that and AAT raise question of credibility.

The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. The Department told the applicant first understand then give answer. The applicant was totally nervous.

‘I am inclined to believe that the applicant is Mohammed Redowan Ahmed, not Md Mamunur Rashed as claimed’ (Court Book Page 121). My protection visa application is effected by the opinion.

I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.

2.    I claim that the AAT made a jurisdictional error when it made decision in which the finding of reasons are confused. I argue that the Tribunal did not apply Real Risk Chance Test used in the Refugee Convention under Australian Law.

Particulars:

I claim that the Tribunal and the Department formed the opinion based on the limited information about the possible harm to me. The Tribunal ignored all other independent information about the attacks on me and the BNP activists. AAT made unreasonable doubt about my documents related with his claims.

The Department and the Tribunal made opinion with the closed mind. I claim that I left Bangladesh because of attack and torture by the supporters of Awami League supporter. I have no protection from the local authorities because my attempts to get help failed and also the monopoly of Awami League cadre and administrative authorities in Bangladesh.

The AAT did not account any evidence of real chance of risk despite the facts of my situation in Bangladesh.

3.    The Tribunal made a jurisdiction error when it did not consider my claims under the Complementary protection Clauses.

Particulars:

I claim I would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return to Bangladesh. I claim that the Tribunal blindly follow the decision of the Delegate.

The Tribunal did not consider that how I came to Australia by another passport taking high risk of life. The AAT ignored intentionally the relevant consideration related with complementary protection set out in s 36(2) (a). I am subjected to a significant harm as consequences of being tried for kill with possibility that sever sentence would be carried out on me.

The AAT ignored real test of persecution and made decision with closed mind.”

(Errors in the original.)

Initiating application

17    The first ground in the appellant’s application to the Federal Circuit Court claimed that the Tribunal failed to consider the appellant’s political opinion against the Awami League as an independent claim. The primary Judge stated that whilst the Tribunal did not make a finding directly to a claim based on the appellant’s political opinion, such a finding was incorporated into the Tribunal’s finding that the appellant was never a genuine BNP supporter, member or office holder with any BNP organisation (SZUUO at [59]). The primary Judge held that this finding was open to the Tribunal to make, on the evidence and material before it and for the reasons it gave (SZUUO at [62]).

18    The second ground of the initiating application claimed that the Tribunal did not assess the risk of the appellant’s harm on the basis of his support for the political party, the BNP. The primary Judge held that the Tribunal did address this claim, as could be seen from the Tribunal’s decision record (SZUUO at [65]). Again, the primary Judge held that this finding was open to the Tribunal to make, on the evidence and material before it and for the reasons it gave (SZUUO at [68]).

19    The third ground of the initiating application stated that the Tribunal did not assess the escalating political violence in Bangladesh after the appellant left in 2012. The primary Judge found that the Tribunal did assess and accept the escalating political violence in Bangladesh since 2012 (SZUUO at [71]). They were just of the opinion that such escalation was not relevant to the appellant as the appellant did not have a political profile in Bangladesh (SZUUO at [72]). The primary Judge held that this ground was also not made out.

Amended application

20    In the first ground of the amended application the appellant claimed that the Tribunal failed to take into account relevant considerations. The primary Judge found that this claim was not supported by the Tribunal’s decision record (SZUUO at [75]). There was nothing to suggest that the Tribunal asked irrelevant questions of the appellant, or to suggest that the appellant was unable to represent himself before the Tribunal (SZUUO at [79]-[80]).

21    In the second ground of the appellant’s amended application the appellant claimed that the findings of the Tribunal were confused and that the Tribunal failed to apply the “real risk chance test”. The appellant submitted that the Tribunal ignored independent country information relating to the attacks on him and his BNP activities, and that the Tribunal unreasonably doubted the documents he had in support of his claims (SZUUO at [84]-[85]). The primary Judge held that the Tribunal did consider all relevant evidence presented to it, interpreting it in light of Tribunal’s finding on the appellant’s lack of political profile, the prevalence of document fraud in Bangladesh and the concerns surrounding the appellant’s credibility (SZUUO at [86]-[88]). The Judge observed that “simply because the Tribunal did not make findings with which the applicant agreed does not mean that the Tribunal ignored information” (SZUUO at [89]).

22    Further, the primary Judge found that there was nothing to support a finding of bias against Tribunal or a finding that the Tribunal “brought an impartial mind in determining the application for review” (SZUUO at [92]).

23    In the third ground of the amended application the appellant claimed that the Tribunal did not consider his claim under the “complementary protection clauses”. The particulars claimed that the Tribunal simply followed the decision of the delegate and did not consider that the appellant came into Australia on a false passport, risking his life.

24    The appellant also alleged bias in the Tribunal, and claimed that the Tribunal ignored the “real test of persecution”. The primary Judge held that the Tribunal’s decision record did not support the appellant’s contentions that the Tribunal did not consider the appellant’s claims (SZUUO at [96]). Her Honour noted that the Tribunal accepted that the appellant obtained the passport fraudulently, but did not accept that this was done to avoid harm due to the appellant’s political profile. The primary Judge held that the Tribunal’s finding was open to it on the evidence before it (SZUUO at [99]).

25    Lastly, the primary Judge held that the Tribunal was able to have regard to its finding that the appellant would not likely face harm in Bangladesh because of his lack of affiliation with the BNP, when considering whether Australia owed the appellant complementary protection pursuant to s 36(2)(aa) of the Act (SZUUO at [100]).

Appeal to the Federal Court

26    The grounds of the appeal in this Court are as follows:

1.    The judge of the Federal Circuit Court in his honourable judgement delivered on the 29 April 2016 failed error of law and relief under the judiciary Act. He failed to find that the Administrative Appeals Tribunal (AAT) has not found any evidence in relation to may claims and thus its decision influenced by sufficient doubt.

2.    The Administrative Appeals tribunal’s decision was affected by the recent High Court reported decisions.

3.    Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 25 June 2014 in deciding my Protection visa review application. Thus, the procedures that were required by the act or regulations to be observed in connection with the making of the decision were not observed.

(errors in original.)

27    The orders sought by the appellant in this matter are:

1.    The application may be heard and the appeal to the Honourable Court be allowed.

2.    That the judgement made by the honourable judge EMMETT, given on 29 April 2016 at Sydney Registry, be set aside.

3.    The decision of the Administrative Appeals Tribunal be quashed and allow applicants to stay in Australia permanently.

4.    An order (or declaration) to redirect the applicants claims to the AAT for further consideration and to advise the Tribunal to make a further consideration according to law and procedure.

5.    An order that no action is taken to remove the applicants from Australia while this appeal is pending.

6.    An order that the respondent will pay appellants cost in this proceeding.

7.    Any further orders that this honourable court may deem appropriate.

Submissions of the parties

28    Both the appellant and the Minister filed written submissions in this case.

29    In summary the appellant contended as follows:

    He did not consider that his application had been properly considered by the Tribunal, and accordingly there had been a denial of procedural fairness similarly to that in Muin v Refugee Review Tribunal (2002) 190 ALR 601.

    Although the Department went through a range of documents, the Tribunal referred in a negative fashion to these documents so as not to grant him a protection visa. The Tribunal did not read all the materials, in particular those in his favour.

    The decision was misleading, and the Tribunal must have known of the error but did nothing to correct it.

    The Federal Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth).

    He would like an adjournment of approximately two months because he is endeavouring to raise money to engage legal representation.

    The Tribunal’s doubts about his membership of the BNP party were based on unreasonable assumptions.

    The Tribunal discarded oral and written evidence that he was involved in protests without giving any sound reasons.

    The Tribunal intentionally asked irrelevant questions to undermine his role within the BNP Party.

    The Tribunal approached his case with a “closed mind”.

    He never claimed that he had a high political profile – he was a truthful witness.

    The Tribunal failed to apply the correct test in pursuant to s 36(2)(aa) of the Act.

    The appellant has a legitimate expectation from the Tribunal that it would assess the appellant’s claim according to required procedural fairness.

    Any credibility problems he may have suffered in the Tribunal hearing arose because he was sick, a fact he mentioned at the middle of the hearing to seek an adjournment, but which was refused by the Tribunal.

30    In response the Minister submitted, in summary:

    To the extent that pleaded grounds of appeal raise complaints not before the primary Judge, the appellant requires the leave of the Court to do so. The Court should not grant leave.

    In relation to ground of appeal 1, the gravamen of the complaint is that the Tribunal erred because it did not have evidence in relation to the appellant’s claims. This issue was never raised before the primary Judge. In any event it is for the appellant to satisfy the Tribunal of the merit of his claims, not for the Tribunal to rebut the factual assertions of the applicant before it. The appellant’s submissions are unparticularised.

    The “recent High Court decisions” to which the appellant refers in ground of appeal 2 are not identified, nor how they affect the Tribunal’s decision. Further, the facts in Muin are not similar to the facts in this case. In any event, it is unclear what material the appellant wishes to assert was not before the Tribunal, and how in the circumstances of this case a denial of procedural fairness arose.

    Ground of appeal 3 makes a general and unparticularised allegation that the Tribunal failed to follow the proper procedure. There is no error in the finding of the primary Judge that the Tribunal committed no error with regard to its procedure.

Consideration

31    At the hearing the appellant sought an adjournment in order to have further time in which to seek legal advice to assist him. After hearing both parties I refused the application for adjournment, on the basis that:

    It was clear that the appellant had already received some assistance in drafting his submissions. While I do not understand that the assistance was that of a legal practitioner, nonetheless it appears that the submissions were prepared by a person with some level of legal knowledge. To that extent submissions had been prepared on the appellant’s behalf and submitted to the Court.

    There was no material before the Court to indicate that the appellant was in communication with lawyers, or that lawyers had indicated a preparedness to represent him. In his written submissions the appellant had indicated that he had lacked money to brief lawyers, and that he sought an adjournment for 2 months, however at the hearing the appellant appeared somewhat surprised at the length of time he had requested. In the circumstances I was not satisfied that an adjournment of 2 months, or any length of time, would be of utility in that I cannot be satisfied that the appellant would engage lawyers during that time. In this respect I note observations of the Full Court in Zaoui v Minister for Immigration and Citizenship [2012] FCAFC 70 at [4].

    As her Honour below indicated (at [45]), the appellant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language for his assistance in the Federal Circuit Court proceedings. Notwithstanding this the appellant appeared in person in the proceedings below. There is nothing before me to suggest that the appellant would not continue to adopt the same approach in this Court – that is, appear without legal representation – as he did in the Federal Circuit Court, or indeed as he has adopted in these proceedings to date.

32    Turning now to the substantive proceedings, at the hearing the appellant handed up additional submissions for the Court’s consideration. I note the appellant’s oral submission that the material in his second written submissions was intended to supplement his earlier written submissions rather than supersede them or constitute additional grounds of appeal for which leave had not been given. Accordingly I will have regard to those submissions in that light.

33    In my view no error has been demonstrated in either the decision of the Federal Circuit Court Judge or the Tribunal. I have formed this view for the following reasons.

34    First, the appellant submitted that the Tribunal approached his case with a closed mind, did not give sound reasons, was unreasonable, and did not give proper consideration to his case or his documentation. In my view there is nothing in the reasons of the Tribunal to support a finding that the reasons were defective on any of these bases. The reasons of the Tribunal were thorough; it appeared that the Tribunal asked numerous questions of the appellant and took into consideration his answers; and the Tribunal certainly commented in some detail on the claims of the appellant and the material before it. Insofar as the appellant alleges bias on the part of the Tribunal – as Mr Pinder for the Minister correctly pointed out, an allegation of bias is a very serious matter which must be strictly pleaded, and simply because the Tribunal does not agree with or accept the submissions of the applicant before it does mean that it was biased against him (Minister for Immigration v Jia Legeng (2001) 205 CLR 507).

35    Second, the appellant submitted that the Tribunal had refused to adjourn the hearing after he had requested an adjournment because he felt ill. There is nothing in the reasons for decision of the Tribunal to indicate that the appellant had requested such an adjournment, or that he was ill or at any time unable to proceed with the hearing. Indeed – and contrary to this submission of the appellant – it appears that the Tribunal had offered to, and did, adjourn the hearing to allow him time to respond in writing to a number of its questions and to send it further information. It further appears that the appellant took advantage of this offer, and sent the Tribunal the statutory declaration to which I referred earlier in this judgment. None of this supports the appellant’s contention that he was denied natural justice by the Tribunal.

36    Third, the appellant submitted that the Tribunal approached his case with something of a “broad brush”. More precisely, the appellant contended that the Tribunal did not take into account that he was not a “big leader” in the BNP, and further that the Tribunal did not recognise that BNP leaders with lower political profile could be the subject of persecution in Bangladesh. In my view this submission fails because:

    The Tribunal clearly carefully examined the claims and documentation relied on by the appellant. While the Tribunal may not have differentiated in its reasons between “big leaders” and those in more minor positions in the BNP, it is by no means evident that this was a differentiation advanced by the appellant, or even that it was an issue before the Tribunal.

    Further, it is clear from the decision of the Tribunal that the Tribunal did not accept that the appellant was a genuine BNP supporter, much less an office-holder as the appellant claimed. The Tribunal found against the appellant in respect of his credit, however findings of credit are findings of fact for the Tribunal as decision-maker. I do not consider there was any jurisdictional error associated with the manner in which the Tribunal approached the task of determining the appellant’s credibility.

    In any event, the case put to the Tribunal by the appellant suggested that he was something in the nature of a “big leader” in the BNP, and that it was for this reason that he was persecuted by the Awami League. The case of the appellant and his position with the BNP appears in this respect to have shifted since his appearance before the Tribunal.

37    Fourth, as the Minister submitted there are no recent High Court decisions to which the appellant specifically adverts as supporting this appeal. One recent High Court decision which does not support the appellant’s case is Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [30], where the High Court endorsed earlier comments of Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 658 [65], that:

the phrase “legitimate expectation” when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded.

38    In this context I find the submissions of the appellant concerning his “legitimate expectations” unpersuasive.

39    Fifth, the appellant’s second set of submissions seemed to relate to jurisdictional error in the Tribunal in its consideration of s 36(2)(aa) of the Act. The Tribunal considered s 36(2)(aa) but was not satisfied that the appellant was a person in respect of whom Australia had protection obligations. None of the appellant’s submissions alleging error in the Tribunal in that consideration have merit.

40    Finally, I am unable to identify any manner in which the Tribunal did not follow proper procedure. In dismissing the application for judicial review of the Tribunal’s decision I consider that the learned primary Judge was correct.

41    It follows that the appeal should be dismissed with costs.

Associate:

Dated:    9 August 2016