FEDERAL COURT OF AUSTRALIA

SZUZR v Minister for Immigration and Border Protection [2016] FCA 951

ORDERS

THE COURT ORDERS THAT:

1.    Application for leave to appeal filed on 13 April 2016 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

MARKOVIC J:

1    The applicant applies for leave to appeal from a judgment and orders of the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the second respondent (at the time the Refugee Review Tribunal) (the Tribunal): see SZUZR v Minister for Immigration & Anor [2016] FCCA 981 (SZUZR). The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the applicant a Protection (Class XA) visa.

2    The orders made by the primary judge dismissing the application were made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (FCC Rules). They are therefore interlocutory and the applicant requires leave to appeal from them pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).

background

3    The applicant arrived in Australia on 14 March 2013 on a Subclass 456 visa (a short stay business visa). On 12 April 2013 he applied for a Protection (Class XA) visa (Protection Visa).

4    The applicant is a citizen of Bangladesh. His claims are summarised in the reasons of the primary judge: see SZUZR at [4]. In summary, the applicant is a Buddhist. He claimed to have been persecuted by Muslim fundamentalists, the Bangladesh Nationalist Party (BNP) and Jamat-e-Islami activists in Bangladesh because of his minority Buddhist religion. The applicant claimed that he was assaulted by BNP members, his father was killed by fundamentalist Muslims and his brother was tortured. As a result of these circumstances, he claims to fear harm on return to Bangladesh.

5    On 25 November 2013, following an interview which took place on 18 September 2013, a delegate of the Minister refused to grant the Protection Visa.

6    On 23 December 2013 the applicant applied to the Tribunal for a review of the delegate’s decision. He attended a hearing before the Tribunal on 10 June 2014 and again on 16 July 2014. The applicant provided additional documentation to the Tribunal in support of his claims and, following the second hearing, the applicant was granted further time to provide additional evidence, which he did on 23 July 2014. On 31 July 2014 the Tribunal affirmed the delegate’s decision not to grant the applicant the Protection Visa.

the Tribunal decision

7    A threshold issue before the Tribunal was whether the applicant was an Indian or Bangladeshi citizen. The applicant had fled from Bangladesh to India in November 2010. He travelled to Australia on an Indian passport in a slightly different name to that which he claimed was his real name. He claimed to have obtained the passport fraudulently while in India. The Tribunal found the applicant’s evidence in relation to his Indian passport to be “plausible and credible”. Thus it was willing to give him the benefit of the doubt for the purposes of its decision and accepted that he was a national of Bangladesh and had no right to protection in India.

8    The Tribunal had a number of concerns about the applicant’s evidence. Those concerns led the Tribunal to find that the applicant was not a credible witness and had not been truthful in relation to the events he claimed took place in Bangladesh, his reasons for leaving Bangladesh or his fears about returning. The Tribunal’s concerns can be summarised as follows:

(1)    the Tribunal did not find it credible that the applicant’s mother, with whom he said he spoke regularly, would wait for four months to tell him that police had come looking for him. In addition, the Tribunal did not find it credible that, if the applicant was told that the police were looking for him, he would not consider this to be important;

(2)    the Tribunal noted that the applicant’s evidence in relation to charges being laid against him for extortion had changed significantly as between the first and second hearing before it. It considered that if charges had been laid against the applicant he would accurately recall when the police had come to his family home in relation to those charges. His inability to do so raised doubts in the Tribunal’s mind about whether any such charges had been laid;

(3)    given the applicant had been out of the country since November 2010, the Tribunal did not find it credible that the authorities would lay false charges against him in late 2012 or in 2013;

(4)    the Tribunal found the applicant’s evidence in relation to his claims about when and how his family’s land was possessed by local Muslims to be so inconsistent that it was not satisfied that the family land was taken by Muslims in Bangladesh;

(5)    the Tribunal found the applicant’s evidence in relation to why his father was attacked and killed was inconsistent as between his written statement and his evidence given at the hearing and that it was unpersuasive. While the applicant provided a death certificate for his father, which was interpreted at the first hearing by the interpreter, there was no evidence before the Tribunal which supported the applicant’s claim that his father was beaten to death either because of his political and religious activities or his protests against the taking of the family land. Accordingly, the Tribunal placed little weight on the death certificate;

(6)    the Tribunal found the applicant’s evidence in relation to what protests or complaints were lodged in relation to the possession of the family land to be inconsistent as between his written claims and his evidence given at the second hearing and to be unpersuasive;

(7)    the Tribunal found that the applicant’s claim at the second hearing, that he was forced to go into hiding at his uncle’s home approximately five to six months after his father’s death, was inconsistent with his earlier evidence that he was living with his mother in the family home before he left to go to India. The Tribunal found the applicant’s explanation for the inconsistency to be unpersuasive;

(8)    the Tribunal did not find the applicant’s claim to have been assaulted on numerous occasions between 2004 and 2010 to be persuasive and considered that if that claim were true the applicant would have referred to it in his written statement;

(9)    the Tribunal found the applicant’s evidence about his involvement in a sporting club in Bangladesh to be inconsistent and unpersuasive. The Tribunal was not satisfied that the applicant had any interest in politics or that the club was politically associated. It did not accept that there was a real chance or risk of harm to the applicant as a result of his involvement in the sporting club even if he was to return and re-join the club; and

(10)    the Tribunal found that the applicant’s travel history was not consistent with his claimed fears. It did not consider that the applicant would have voluntarily returned to his home area if he had been forced to flee from there because of fears for his life.

9    The Tribunal accepted that the applicant’s brother had obtained protection in France as a refugee. However, it found that the statement provided after the second hearing setting out the applicant’s brother’s claims was substantially inconsistent with the applicant’s claims and thus the Tribunal placed little weight on the evidence that the applicant’s brother obtained protection in France and did not consider that this overcame its concerns with the applicant’s evidence. The applicant also provided a letter of support from his brother. However, the Tribunal found that the letter was not consistent with the applicant’s brother’s statement provided with his application for asylum in France. Because of those concerns and the late provision of the letter, the Tribunal placed little weight on it and again did not consider that it overcame the concerns that the Tribunal had with the applicant’s evidence.

10    The Tribunal did not accept that the applicant had been threatened or assaulted in Bangladesh. It did not accept that his family land was taken by local Muslims. The Tribunal therefore found that there was no real chance or risk of the applicant being harmed as a result of any dispute over his family land if he were to return to Bangladesh. The Tribunal also found that there was no real chance or risk that the applicant would be harmed because of his past or future involvement with the sporting club.

11    The Tribunal expressed its view that it did not find the applicant to be a credible witness and it was not satisfied that he had any political profile in Bangladesh or that he would be involved with politics if he was to return to Bangladesh or that he would refrain from being so involved because of any fear of harm. Thus the Tribunal was not satisfied that there was a real chance or risk that the applicant would be harmed because of his political opinion.

12    Despite the Tribunal’s concerns about the applicant’s credibility it accepted that the applicant is a practising Buddhist. It considered whether there was a real chance of the applicant being persecuted as a result of his religion or ethnicity. In doing so, it considered a range of independent country information concerning the status of Buddhists in Bangladesh. On the basis of the country information and the evidence before it the Tribunal concluded that the chance that the applicant would be harmed because of his Buddhist religion or his Barua ethnicity was remote.

13    The Tribunal concluded that the applicant did not meet the criterion set out in s 36(2)(a) or s 36(2)(aa) of the Act.

the proceedings in the Federal Circuit Court

14    On 2 September 2014 the applicant commenced proceedings in the Federal Circuit Court seeking review of the Tribunal’s decision. The grounds of the application before the Federal Circuit Court were as follows (as written):

1.    RRT did not look into my case properly.

2.     RRT ignore the real fact is my safety/

3.     I need protection otherwise my life will be at risk.

15    The applicant also sought the following “interlocutory, interim or procedural orders” (as written):

1.     Please set aside the decision made by RRT as it did not look into the facts a my case properly. RRT did not make a favorable decesion despite I met all the requirements to grant my protection visa.

2.     My life will be in danger, if I have to return to my home country so, I need protection in Australia to save my life.

16    Based on the Minister’s earlier submissions that the application did not raise an arguable case for the relief sought, the matter proceeded as a show cause hearing pursuant to Pt 44 of the FCC Rules. The primary judge identified that the issue before the Court was whether the grounds of the application raised an arguable case for the relief sought, noting that the applicant sought orders that the Tribunal’s decision be quashed and returned to it for reconsideration: SZUZR at [20]. The primary judge then set out the test for the exercise of the Court’s power under Pt 44 of the FCC Rules to dismiss an application.

17    The primary judge noted that the orders the applicant sought took issue with the Tribunal’s factual findings and, in one important respect, ignored its adverse finding as to his credibility. His Honour found that the applicant’s assertion, both in his grounds of application and orally before the Court, that his life would be in danger if he returned to his home country did not rise above a request for impermissible merits review and did not raise any legally arguable case to set aside the Tribunal decision.

18    The primary judge found that the grounds of application sought merits review. His Honour noted that the Tribunal affirmed the delegate’s decision because it found the applicant’s evidence and claims about past events of claimed harm to be untruthful and because it found that the matters which it did accept, his religion and ethnicity, did not, on the evidence before it, give rise to a real risk of serious or significant harm. The primary judge held that the Tribunal’s findings were all reasonably open to it based on the material before it, that it gave comprehensive and cogent reasons for its conclusions and the antecedent findings which informed them and that the assignment of weight to the applicant’s evidence and country information was a matter for the Tribunal: SZUZR at [23]-[24].

19    The primary judge observed that the Court had no power to assess the applicant’s claims and evidence to fear harm and to substitute its own findings of fact for those of the Tribunal. His Honour held that the applicant’s complaint that the Tribunal did not look into his case properly did not provide any basis for any arguable case because the Tribunal’s disbelief of the applicant in the circumstances presented to it did not mean that it failed to properly consider his claims: SZUZR at [25].

20    The primary judge concluded that the grounds of the application did not raise an arguable case for the relief sought and that, while the FCC Rules provide that at a hearing of an application to show cause an applicant is confined to the grounds mentioned in his or her application, the applicant did not raise anything further with the court that would have made it appropriate to dispense with that rule pursuant to r 1.06 of the FCC Rules. In the circumstances, the primary judge held that it was appropriate the application be dismissed pursuant to r 44.12(1)(a) of the FCC Rules: SZUZR at [26]-[27].

the application for leave to appeal

21    On 13 April 2016 the applicant filed his application for leave to appeal from the orders made and judgment given by the primary judge. In his application under the heading “Grounds of Application” the applicant includes the following:

The FCC made an administrative error by not considering my claims despite I met all the requirements to revoke the AAT's decision and remit my case for reconsideration.

22    A draft notice of appeal is annexed to the application for leave to appeal. It includes as a ground of appeal the same ground included in the application for leave to appeal.

23    The applicant has filed two affidavits in support of his application for leave to appeal affirmed 13 April 2016 and 2 May 2016 respectively. The first of those affidavits does no more than to include a statement by the applicant that he is the applicant and is authorised to make the affidavit. It includes no further matters by way of evidence. The second affidavit annexes a letter addressed to the New South Wales Appeals Unit of this Court in which the applicant relevantly states the following:

I would like to state the followings to be considered for my case:

1.    The FCC made an error by not considering my claims. I would like the FC to set aside the FCC’s decision and remit my case for reconsideration.

2.    I will represent by myself.

3.    I need an interpreter in Bangla Please organise the interpreter.

24    The applicant did not provide any written submissions in support of his application.

25    At the hearing, after I explained to the applicant the task for the Court upon the hearing of the application, the applicant submitted that if he returned to his country he would be killed because of the situation, that there is no one at the moment in his family in Bangladesh and so that if he returns he will be tortured because of the situation “where there are lots of killings and torture, harassment” and if he returns he will face the same consequences. The applicant asked the Court to reconsider his situation so that he did not have to return to Bangladesh and so that he could remain in Australia.

Legal principles

26    In order to succeed in an application for leave to appeal an applicant must show that in all the circumstances the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a Full Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. The onus lies on the party seeking leave to appeal to demonstrate why leave should be granted: see SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [8] (per Flick J).

consideration

27    The applicant’s draft notice of appeal does not identify any error on the part of the primary judge. Rather, the sole ground included in it alleges that the primary judge made an “administrative error” by not considering his claims despite him meeting all the requirements to revoke the Tribunal’s decision. As the primary judge identified at [25] of his judgment, the Federal Circuit Court had no power to assess his claims and evidence to fear harm and to substitute its own findings of fact for those of the Tribunal. The primary judge correctly held that the grounds of application and the oral submissions made at the hearing sought merits review. Those grounds did not provide any basis for any arguable case.

28    As the primary judge identified the Tribunal’s findings were all reasonably open to it on the material that was before it. It gave comprehensive reasons for its conclusions and the findings which informed them. Further, the primary judge correctly held that the assignment of weight to the applicant’s evidence and country information was a matter for the Tribunal: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

29    The applicant’s sole ground of review and the oral submissions made at the hearing of his application for leave to appeal seek impermissible merits review. They fail to identify any error on the part of the primary judge. In the circumstances, the applicant has failed to demonstrate that the primary judge’s judgment is attended with sufficient doubt to warrant its reconsideration by a Full Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong.

conclusion

30    For these reasons the application for leave to appeal must be dismissed and the applicant ordered to pay the Minister’s costs.

Associate:

Dated:    16 August 2016