FEDERAL COURT OF AUSTRALIA

SZUUH v Minister for Immigration and Border Protection [2016] FCA 1370

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The appellant appeals against a decision of the Federal Circuit Court of Australia (the FCCA). The FCCA rejected his application for judicial review of a decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal (both the Tribunal)). The Tribunal dismissed the appellant’s application for review of a decision of the Minister’s delegate to refuse him a Protection (Class XA) visa (protection visa).

2    It is desirable to summarise the relevant background matters, which include the reasons of both the Tribunal and the FCCA for rejecting the appellant’s challenges.

Summary of background facts

3    The appellant’s claims for protection primarily related to his fear of persecution in Bangladesh based upon his political opinions. He claimed that, in 1993, after he was admitted into a college to complete the Higher Secondary School Certificate, he was elected the Vice-President of the Jatiyatabadi Chatradal student wing of the Bangladesh Nationalist Party (BNP). In 1994 he became an executive member of the Khasmahal Balur Char Union Parisad of the BNP. During that time Sheikh Hasina, the head of the Bangladesh Awami League, raised a political movement to oust Begum Khaleda Zia from power. When this movement reached its peak, power was transferred to a caretaker government to hold a parliamentary election. The election was held in June 1996, at which time the appellant said that he worked for a BNP candidate, Mr X. Their main opponent was a candidate from the Bangladesh Awami League. The appellant’s duties were to motivate the youth of Ghasmahal Balur Char Union and the Lotufdia Union. Although Mr X won the election, the Awami League won a majority of the seats in the Parliament, and formed the government of Bangladesh.

4    The appellant claimed that, after the Awami League came to power, he became one of their targets in the local area. He claimed that, on 27 February 1997, he was attacked by a group of Awami League goons while passing a bazaar. The appellant claimed that he was seriously injured in the attack, when he was knifed in the back, and he was admitted into a private medical clinic for seven days.

5    In 1999, the appellant became one of the executive members of the then committee of the Serajdikhan Upa Zila BNP. He claimed that Awami League activists then subjected him to more oppression. He claimed that during a parliamentary election in October 2001, he worked again for Mr X and also donated a large amount of money to the election fund and delivered speeches along with Mr X. Mr X and BNP won the election in a landslide victory and formed government. The appellant claimed that he then worked with the government's initiative to develop the country socially, economically, and politically.

6    After five years in power, Prime Minister Zia transferred power to a caretaker government to organise a parliamentary election. The appellant claimed that the opposition denied accepting a first and second caretaker government when finally an army backed caretaker government was installed. The appellant claimed that this caretaker government arrested thousands of leaders and activists of the BNP and tortured them. For the 2008 election, the appellant worked for Mr Z, a national leader of Bangladesh whom the BNP had nominated, who was opposed to the Awami League candidate. The appellant claimed that he campaigned door to door for Mr Z, but Awami League goons warned him not to proceed further. The Awami League won a majority of the seats in the Parliament and formed government in Bangladesh.

7    The appellant claimed that, on 2 January 2009, he was attacked by a group of Awami League cadres at a local bazaar. He claimed that he was beaten with iron bars, punched in his head, and kicked on his body. He said that he became unconscious and was taken to a clinic for three days.

8    The appellant claimed that, in 2010, he was elected as an executive member of a district committee of the BNP. He said that he was targeted on several occasions by Awami League goons, but escaped. He claimed that, in October 2012, he led a procession against the corruption of the Awami League and the oppression toward the BNP and its leaders and activists. He claimed that the procession was disrupted by Awami League goons and he was seriously beaten to near death. He said he was admitted to a local clinic for five days.

9    The appellant claimed that he tried to leave Bangladesh and contacted an agent to obtain a visa for Australia. Meanwhile, police raided his house to arrest him, and he learned that a case had been filed against him. One of the appellant’s relatives helped him escape through the airport. The appellant claimed that his life was not safe in Bangladesh, and he feared persecution if he were to return to Bangladesh.

The Tribunal’s reasons summarised

10    For the following reasons, the Tribunal found the appellant was not credible in relation to his claims of affiliation with the BNP:

(a)    the appellant did not explain his motivation for joining the BNP apart from liking the leader, and the appellant’s evidence in relation to his being attracted to the BNP “was at best superficial”;

(b)    the appellant claimed to have been an elected member of the BNP, yet he was “unable to articulate the policies, principles and platforms of the party in various campaigns except in the most simple terms”; and

(c)    the appellant had limited knowledge of when general elections took place.

11    The Tribunal concluded that the appellant had no affiliation with the BNP and that there was no real chance that he would face persecution because of his alleged BNP affiliation, which allegation provided the basis for his claim for protection.

12    The Tribunal did not accept that the appellant faced serious harm at the hands of the Awami League, its members, goons or Bangladeshi authorities prior to his departure from Bangladesh.

13    The Tribunal also found the appellant’s evidence concerning the alleged harm faced by him in Bangladesh was not credible because:

(a)    his evidence in relation to the claimed harm suffered by him was found by the Tribunal to be “inconsistent, contradictory and confused”;

(b)    he claimed to have faced no serious harm for many years, including the early period when the Awami League was in power, despite claiming to have been a BNP activist and holding executive positions; and

(c)    he was unable to relate what led to the second claimed attack and he was unable to indicate how soon after the claimed second attack he left Bangladesh.

14    The Tribunal found there were no charges outstanding against the appellant in Bangladesh. He was able to depart the country legally using his own passport in his own name. The Tribunal described the appellant’s evidence that he was able to “manipulate” his departure through immigration controls at Dhaka Airport, a city of over ten million people, as not credible because it was “implausible that he could manipulate his way through exit procedures as claimed” (at [53] of the Tribunal’s statement of decision and reasons).

15    The Tribunal did not accept that the documents submitted by the appellant were genuine or reliable. The Tribunal found they were “filled with typographical errors and contain information at odds with the applicant's evidence in relation to his claimed affiliation with the BNP”.

16    The Tribunal concluded that the appellant’s credibility was so seriously undermined that there was no credible or trustworthy evidence before it upon which it could make a finding that he would face persecution.

The FCCA’s reasons summarised

17    The judicial review challenge focused on the following two findings by the Tribunal:

(a)    the claim that he escaped detection when he departed from Dhaka Airport because he was able to manipulate his departure was implausible; and

(b)    the Tribunal’s non-acceptance as genuine or reliable the documents on which he relied.

18    Both these findings were claimed to be arbitrary or irrational. The appellant also complained that the Tribunal failed to give him an opportunity to present evidence about his method of departure from Dhaka Airport.

19    The primary judge’s reasons for rejecting these allegations may be summarised as follows.

20    As to the challenge to the implausibility finding, the primary judge noted that the Tribunal had asked the appellant during the course of the Tribunal’s hearing how he departed Dhaka Airport in circumstances where no description of that event had been given in the appellant’s statutory declaration. The primary judge noted the Tribunal’s summary of the appellant’s response to that question, which was to the effect that the appellant had the assistance of a “media” person, that an immigration agent paid money to immigration personnel and that, by going though those people, “they make sure you get a boarding pass”. The primary judge then set out extracts from the transcript of the Tribunal’s hearing relating to the appellant’s description of immigration controls at Dhaka Airport. The primary judge summarised that evidence as involving a system where people formed a queue at the Airport, which shortened whenever a window became free and the person at the head of the queue went to that window. The primary judge also noted the appellant’s evidence that there was another system under which it was possible for the appellant to be told by a “medium person” (sic) to go to a particular counter. The primary judge noted at [17] that it was unclear whether the appellant’s evidence was to the effect that there were two systems for queuing but that the more reasonable interpretation of the appellant’s evidence was that there was only one queue and the appellant knew beforehand to which counter he needed to go. The primary judge found it was unnecessary to resolve the issue whether there was one or two systems of queuing at Dhaka Airport.

21    As to the appellant’s complaint that the Tribunal’s implausibility finding was irrational or arbitrary because it was based on nothing more than the size of the city of Dhaka, the primary judge emphasised the following matters. His Honour described the implausibility finding as constituting a reason on which the Tribunal relied for not accepting particular evidence from the appellant. After noting that the Tribunal was not required to accept the appellant’s evidence nor have rebutting evidence in order to find that a particular factual assertion by the appellant was not made out, the primary judge observed at [19] that the making of the implausibility finding without any evidence as to whether there was a single queue system at the Airport or that a person could not in fact choose which counter to approach, did not mean of itself that it was not reasonably open to the Tribunal to make the implausibility finding.

22    The primary judge added at [20] that it was open to the Tribunal to assess the appellant’s evidence against the background of unstated and unproved assumptions (being in the nature of administrative notice of matters which arise from a Tribunal member’s general experience of life). The primary judge reasoned that it was open to the Tribunal member:

(a)    to rely upon his own experience of departure procedures at large international airports; and

(b)    to not find as plausible the appellant’s unsubstantiated claim that there were two separate systems of queuing at Dhaka Airport.

23    Furthermore, the primary judge explained at [23] why he considered that it was reasonably regarded as implausible that the appellant was told, while queuing in a single queue, that a prearranged counter was available.

24    The primary judge’s reasons for rejecting the appellant’s challenge to the implausibility finding are reflected in the following paragraphs from his Honour’s reasons for judgment (footnotes omitted):

24    The Tribunal did not articulate the generalisations, or the links between the generalisations, I identified in the preceding paragraphs that would render rational the Tribunal's reliance on Dhaka being a large city for making the implausibility finding. It is for the applicant, however, to prove that the Tribunal's reliance on the size of Dhaka afforded no basis for the Tribunal to make the implausibility finding. I am not satisfied the Tribunal did not implicitly follow such rational chain of reasoning; nor am I satisfied the Tribunal otherwise adopted some irrational chain of reasoning. That is so because I have found there is a rationally available chain of reasoning, based on reasonably available generalisations that it was reasonably open to the Tribunal to hold and apply, that links Dhaka's being large city with the Tribunal's implausibility finding. Alternatively, given the chain of reasoning I have found was reasonably available to link the size of Dhaka and the implausibility finding, it cannot be said that the implausibility finding is “one at which no rational or logical decision maker could arrive on the same evidence”.

25    It is, of course, possible that, as the applicant asserted, a person at Dhaka Airport could have arranged to be processed by a particular migration control officer at a prearranged counter. That something is possible, however, does not by itself make it plausible. Evidence of the procedure at Dhaka Airport would have been required to render plausible the applicant's claim that he went to a prearranged counter to be processed by a corrupted person. The applicant, however, appears to submit that it was for Tribunal to satisfy itself there was evidence that the applicant's bare assertions were implausible. That is incorrect. It was for the applicant to persuade the Tribunal of the facts on which the applicant relied. It was for the applicant, therefore, to provide evidence to the Tribunal that was capable of satisfying the Tribunal that, contrary to the common experience of those who have passed through international airports, the procedures at Dhaka Airport at the time the applicant departed Dhaka were such that they could have enabled the applicant to be processed at a prearranged counter by a prearranged migration control officer, with or without the applicant's name first being called out.

25    As to the appellant’s claim that he had been denied an opportunity to present evidence or argument concerning his method of departure from Dhaka Airport which constituted a failure to comply with s 425 of the Migration Act 1958 (Cth) (the Migration Act), the primary judge rejected this claim for the following two reasons:

(a)    the appellant’s method of departure could not reasonably be viewed as an issue because it only arose in response to the Tribunal’s questions concerning his departure; and

(b)    even if it were an issue, the appellant was the person who raised the question about the method of his departure and there was nothing in the Tribunal’s questioning that could reasonably have suggested to the appellant that his evidence on this matter had been accepted by the Tribunal. He could have asked the Tribunal to provide him with more time to provide substantiating material to support his answers but he failed to do so.

26    As to the appellant’s challenge to the Tribunal’s non-acceptance of the authenticity and reliability of the documents relied upon by the appellant and its findings that the documents were not genuine or reliable, the primary judge referred to the Minister’s submission that it was reasonably open to the Tribunal to give no weight to the documents because it had already made a comprehensive adverse credibility finding against the appellant (citing Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 (Applicant S20) at [12]).

27    The primary judge did not accept the Minister’s submission that the Tribunal’s finding that the documents were not genuine or reliable was based on a comprehensive adverse credibility finding, but his Honour concluded that this did not mean that the Court should accept the appellant’s submission that Applicant S20 was distinguishable because the Tribunal did not find that he had fabricated his claim but simply rejected his evidence.

28    The primary judge found that the Tribunal’s statement of decision and reasons sufficiently referred to materials to which a rational decision-maker could have evaluated the genuineness and reliability of the appellant’s documents and that the Tribunal’s rejection of each of the appellant’s claims for the reasons given by the Tribunal provided a logical basis for the Tribunal not to accept that the appellant’s documents were genuine or reliable.

29    The primary judge noted that there were several typographical errors in documents provided by the appellant which did not purport to be translations. His Honour stated at [39] that he did not agree that it was irrational for the Tribunal to rely upon the typographical errors in the purported translated documents as being evidence of the documents not being genuine. His Honour explained at [39] (footnotes omitted):

39    … The basis of the applicant's submissions that it was irrational for the Tribunal to so reason is that the typographical errors in translation could only reflect on the translator, not the original document. That submission, however, might carry weight if there were evidence that the translated documents on which the applicant relied were what they purported to be, namely, translated documents. There is nothing in the evidence before me that indicates the applicant had provided to the Tribunal the documents that had been purportedly translated. For example, the letter dated 3 January 2014 from the applicant's agent the Tribunal enclosed a “translated copy” of various documents. Even if there were evidence of the documents of which each of the purported translated copies was a translation, the errors in the translations are such as to have rendered it reasonable for the Tribunal not to accept the translations to be genuine translations. Here are some such examples: “Please have my greetings in the letter”; “after performing assignments with very success”, “He is known to me long days”, “He is a success organizer”, and “Due to his such popularity”.

The appeal

30    The notice of appeal raised the following three grounds (without alteration):

1.    The judge of the Federal Circuit Court in his honourable judgement delivered on the 10 August 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 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.

31    On 30 August 2016 directions were made by a deputy district registrar for the preparation of the appeal. The appellant was directed to file a written outline of submissions no later than 10 business days before the hearing date. The appellant, who represented himself, failed to do so.

32    When the matter was called for hearing, the appellant appeared representing himself and was assisted by an interpreter. He was invited to make oral submissions on his three grounds of appeal.

Consideration

33    Ground 1 is not easily understood. It appears to claim that the primary judge erred in not finding that there was no evidence to support the Tribunal’s findings in respect of some of the appellant’s claims. No particulars were provided in the notice of appeal to identify the relevant claims. In the course of the oral hearing, the appellant stated that he had told the truth and the Tribunal had not understood him and his circumstances.

34    I do not accept the appellant’s contention that the Tribunal’s findings concerning his credibility lacked evidence. As the Tribunal’s statement of decision and reasons reveal, the Tribunal had regard to the appellant’s own evidence, given both orally at the hearing and in documentary evidence which he had adduced, in making adverse credibility findings in respect of appellant’s claims. The Tribunal also found that the documentary evidence to be neither genuine nor reliable. There was no lack of evidence to support those findings. The appellant’s contention was in substance an attack upon the Tribunal’s fact finding and no appealable error has been demonstrated in the primary judge’s rejection of the alleged jurisdictional error.

35    As to the appellant’s claim that he was not understood by the Tribunal, it may be noted that the appellant was assisted by an interpreter at the Tribunal hearing. He was also represented by a solicitor.

36    Ground 2 is difficult to comprehend in the absence of some identification of the High Court decisions which are relevant. When during the hearing in this Court the appellant was invited to identify the relevant decisions, he was unable to identify any such decisions and repeated that he had told the truth.

37    The appellant has not satisfied me that there is any substance in ground 2 and I reject it as an invitation for the Court to usurp the role of the Tribunal and without identifying any appealable error on the part of the FCCA.

38    As to ground 3, it too is seriously deficient in not identifying the procedures which it is alleged the Tribunal failed to follow. It appears to involve an allegation of procedural unfairness. When invited to identify the alleged procedural deficiencies, the appellant said that he could not speak English and was unable to tell his story.

39    As the Minister contended, the appellant has not identified any appealable error which affects the primary judge’s finding at [28] that there was no failure to comply with s 425 of the Migration Act and no procedural unfairness. The appellant was represented by a solicitor in the FCCA. As apparently is the Minister’s practice, in those circumstances it was a matter for the appellant himself to arrange to have an interpreter present if he wished. His personal failure to attend to this matter does not give rise to procedural unfairness. Ground 3 is rejected.

Conclusion

40    For these reasons, the appeal must be dismissed and the appellant ordered to pay the Minister’s costs.

Associate:

Dated:    17 November 2016