FEDERAL COURT OF AUSTRALIA

SZVID v Minister for Immigration and Border Protection [2016] FCA 1383

Appeal from:

SZVID v Minister for Immigration [2016] FCCA 1563

File number:

NSD 899 of 2016

Judge:

WHITE J

Date of judgment:

21 November 2016

Catchwords:

MIGRATION – application for judicial review – decision of Refugee Review Tribunal to affirm decision of the Minister to refuse a protection visa application – Federal Circuit Court dismissed appeal – grounds of appeal unparticularised.

Held: appeal dismissed.

Legislation:

Migration Act 1958 (Cth) ss 36(2)(aa), 423A , 424A(1), 476

Migration Amendment (Protection and Other Measures) Act 2015 (Cth)

Cases cited:

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425

Date of hearing:

3 November 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

27

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Ms G Doyle

Solicitor for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

NSD 899 of 2016

BETWEEN:

SZVID

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

WHITE J

DATE OF ORDER:

3 NOVEMBER 2016

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to the pay the costs of the First Respondent of or incidental to the appeal to be taxed or agreed.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellant is a national of Bangladesh who arrived in Australia on a Business (Short Stay) Visa on 14 October 2012. On 12 November 2012, he applied for a protection visa but this was refused by a delegate of the Minister. The Refugee Review Tribunal (the RRT) affirmed that decision on 30 September 2014.

2    The appellant sought, unsuccessfully, judicial review in the Federal Circuit Court (the FCC) of the RRT decision, pursuant to s 476 of the Migration Act 1958 (Cth): SZVID v Minister for Immigration [2016] FCCA 1563. The appellant then appealed to this Court.

3    The appellant was unrepresented on the appeal, as he had been in the FCC.

4    The Administrative Appeals Tribunal (the AAT), which has taken the place of the RRT as the second respondent to the appeal, has filed a submitting notice.

5    Following the hearing on 3 November 2016, I made orders dismissing the appeal and said that I would publish my reasons later. The following are my reasons.

6    The appellant is now 41 years old. He claimed to have well-founded fear of persecution in Bangladesh by reason of his involvement with the Bangladesh National Party (the BNP), including having been an Executive Member of the Senbagh Thana Executive Committee of the BNP, having been involved with, and a financial supporter of, the BNP in Lalbag in Dhaka, and having “led the party in our local area from [the] frontline”. He said that by reason of these involvements he had been targeted, threatened and physically attacked by members of the Awami League and that his business in Bangladesh had been ruined. After an attack on 6 September 2012, he had gone into hiding before obtaining the Business (Short Stay) Visa which had allowed him to come to Australia.

7    The RRT member formed an adverse view of the appellant’s credibility and rejected these claims. The member gave the following reasons for doing so:

(a)    the appellant admitted having made a previous application for protection in the United Kingdom in 2006 using a false name and providing false information. The RRT member also noted that the appellant had given false information on oath on a review before an immigration Judge in the United Kingdom;

(b)    following the appeal hearing of his protection claim in the United Kingdom, the appellant had voluntarily returned to Bangladesh at a time when the Awami League was in power, conduct which the RRT member considered was “wholly inconsistent with a subjective fear of persecution”;

(c)    the appellant had, since 1998, exited and re-entered Bangladesh so many times that he was unable to count them. He had never been refused exit or re-entry. Since 2009, he has exited and then re-entered Bangladesh three times without difficulty despite the incidents of harassment upon which he relied. The RRT member considered that this indicated that the appellant was not of adverse interest to the authorities in Bangladesh;

(d)    the appellant had not sought protection immediately upon arriving in Australia but instead had done so some 4 to 5 weeks later;

(e)    the appellant’s claims to have been actively involved in the BNP were seriously undermined by his lack of knowledge of a number of matters which a political activist could be expected to know, including the number of elections and the policies of the BNP. In addition, the RRT member considered the appellant’s description of his activities in the campaigns in which he said he had been involved to be so vague and lacking in detail as to undermine the credibility of his account;

(f)    it was implausible that the appellant would have been elected as an Executive Member of the Thana Committee in Sabagh in June 2009 given that he had been absent from Bangladesh in the United Kingdom for the previous seven years.

8    Having regard to these matters, the RRT member concluded that the appellant was not and had not been a BNP member, supporter or office holder and did not regard as reliable documents upon which the appellant had relied, including a letter from the BNP in Senbagh indicating that he had been joint secretary of the BNP in that District. That finding led to a further finding that the appellant is not of adverse interest to the Awami League and that there is no real chance that he would face serious harm from any Government authority for reasons of political opinion in Bangladesh. The RRT then found that the appellant is not a person to whom Australia owes protection obligations under the Refugee Convention. For similar reasons, the RRT member considered that the appellant did not satisfy the criteria for complementary protection under s 36(2)(aa) of the Migration Act.

9    The appellant’s Notice of Appeal contains two grounds under the heading “Grounds of Appeal” and four grounds under the heading “Ground of Application”. The matters raised by these grounds involve some duplication and most suffer from a want of particularity.

Alleged legal errors and denial of procedural fairness

10    A number of the appellant’s grounds alleged errors of law and the denial of procedural fairness. Ground 1 provides:

The Hon FM Court in its decision ignored some legal issues which were not clearly explained in the judgment given on 27 May 2016. The Hon. [C]ourt has denied the applicant’s natural justice. There is no reason to make decision in favour of the respondent.

11    In Ground 2, the appellant complains:

The Tribunal did not follow the procedural fairness in reviewing the applicant’s visa cancellation. It is apparent that Tribunal has not acted in accordance with the law.

The reference to a “visa cancellation” is plainly inapposite. The RRT was not reviewing a decision to cancel a visa, but instead the decision not to grant a visa.

12    Grounds 1, 3 and 4 under the heading “Grounds of Application” also complain of errors of law, a failure by the RRT to follow “proper procedure” and denials of procedural fairness or natural justice.

13    None of these grounds is particularised and it is accordingly difficult to identify the errors which the appellant imputes to the FCC Judge. This difficulty is not overcome by the appellant’s written submission. After some introductory paragraphs in which he reiterated the basis of his claim for protection, the appellant’s written submission took the form of a paragraph by paragraph response to the RRT reasons. The appellant gave an explanation for his lies under oath in relation to his claim for protection in the United Kingdom; an explanation for the lapse of time before making his claim for protection in Australia; a repetition of his claimed activities with the BNP in Bangladesh; an explanation of some of his conduct in relation to the application for the protection visa which had been critiqued by the RRT member; and he repeated his fear that he will be killed or harmed if he returns to Bangladesh. In short, the substantive part of the written submissions of the appellant was directed to a merits review of the RRT decision, something which is beyond the jurisdiction of both the FCC and of this Court.

14    The appellant did not attempt in the written submissions to identify any legal error, nor any denial of procedural fairness or of natural justice. On the hearing of the appeal, I drew the appellant’s attention to the need for him to identify errors in the FCC judgment, but he did not do so.

15    The FCC Judge considered the corresponding claims which the appellant had made in that Court in some detail. The Judge did so in the light of ss 425 and 422B of the Migration Act and by reference to a transcript of the hearing in the RRT. He could not identify any shortcoming in the manner in which the RRT member had conducted the hearing or had determined the matter. The Judge noted that the appellant had been given the opportunity to develop his claims and to respond to the information which was adverse to him. He noted that the RRT member had, in addition, given the appellant the opportunity to provide a statutory declaration after the hearing. The appellant took advantage of that opportunity and provided responses to the member’s expressed concerns.

16    It is apparent that the appellant was well aware that the RRT member was concerned about his credibility and reliability and of the matters giving rise to that concern. He addressed each in the post-hearing statutory declaration. The appellant’s real complaint appears to be that his explanations were not accepted. However, as the FCC Judge noted, the RRT does not deny an applicant natural justice or procedural fairness simply because it does not accept particular claims.

17    The appellant also referred in the FCC to s 423A of the Migration Act. That section was first inserted into the Migration Act by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth). It came into operation on 18 April 2015 but applied only to applications for protection visas made on or after 14 April 2015. As the appellant’s application had been made on 12 November 2012, s 423A had no application in his case.

18    Section 424A(1) requires the RRT to give to an applicant in an appropriate way clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. The FCC Judge was satisfied that the RRT member had complied with that requirement. There is no basis, in my opinion, upon which that conclusion could be regarded as wrong.

19    In my opinion, those grounds which allege errors of law and denials of procedural fairness or of natural justice are not made out.

Lack of impartiality

20    Ground 2 under the heading “Grounds of Application” is as follows:

The manner in which the Tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

21    Again, this ground is unparticularised. The appellant did not point in his written, nor his oral submissions, to any matter suggesting a want of partiality (bias) by the RRT member.

22    It is trite to say that a decision-maker does not reveal bias simply by reaching a decision which is adverse to an applicant.

23    The FCC Judge referred to the established principles relating to the circumstances in which a reasonable observer might apprehend that a decision-maker may not bring an impartial mind to the decision-making, referring to Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507 and to Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425. The Judge reviewed the evidence, including the transcript of the proceedings in the RRT, and concluded that these did not support the proposition that the RRT member had not brought an open mind to the review and had not been open to persuasion. My own reading of the same material supports that same conclusion.

24    This ground of appeal is not made out.

General

25    It is appropriate to mention that the FCC Judge appears, in the appellant’s interest, to have taken a “generous” view of the matters raised by the appellant’s application pursuant to s 476. The FCC Judge considered each matter in some detail and did not identify any jurisdictional error in the RRT decision.

Summary

26    In summary, none of the appellant’s grounds of appeal is made out.

27    These are my reasons for the Orders made on 3 November 2016 dismissing the appeal and requiring the appellant to pay the Minister’s costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate:

Dated:    21 November 2016