FEDERAL COURT OF AUSTRALIA

SZVIE v Minister for Immigration and Border Protection [2017] FCA 1361

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

COLLIER J:

1    Before the Court is an appeal from a Judge of the Federal Circuit Court of Australia in the matter SZVIE v Minister for Immigration & Anor (No 2) [2017] FCCA 1139. The appellant sought review of a decision of the Administrative Appeals Tribunal (then known as the Refugee Review Tribunal) (the Tribunal) that affirmed the decision of a delegate of the first respondent (the delegate) to refuse the issuing of a protection visa pursuant to the Migration Act 1958 (Cth) (the Act). The Federal Circuit Court dismissed the appellant’s application for judicial review.

2    It is convenient to understand the background facts before turning to the issues raised in the appeal.

Background

3    The appellant, a citizen of Bangladesh, applied to the Department of Immigration and Citizenship (the Department) for a Protection (Class XA) visa in January 2013. In the application, he claimed to have been involved with the Chattra Dal student wing of the Bangladesh National Party (BNP) in the capacity of Joint Secretary of the College Committee. The appellant also claimed he was targeted by supporters of the Awami League (AL) party and sought medical attention after being physically attacked for his opposing political beliefs. He feared being harmed again or killed by members of the AL on the basis of his involvement with the BNP if he returned to Bangladesh.

4    As the primary Judge noted in SZVIE v Minister for Immigration & Anor (No 2) [2017] FCCA 1139 at [4], the appellant provided false and misleading information to the Department to secure entry into Australia and, after arriving, waited nine weeks before applying for a protection visa.

5    The appellant’s protection visa application was refused by the delegate in July 2013.

Review of the Tribunal

6    The appellant sought review of the delegate’s decision at the Tribunal in August 2013. In its decision in September 2014, the Tribunal examined in great detail the appellant’s application for review, his claims and supporting evidence, the information provided on his protection visa application, the conduct of the Department’s interview and the hearing at the Tribunal. I also note the Tribunal’s consideration of country information including material about clashes between BNP and AL political activists and the ‘general security situation’ in Bangladesh.

7    In its analysis and assessment, the Tribunal concluded:

67.    The Tribunal finds that in the particular circumstances of this applicant that there is no real chance that the applicant would face persecution for reasons of political opinion in Bangladesh.

68.    The Tribunal does not accept that the applicant is of adverse interest to the Awami League for any reason.

69.    … The Tribunal considered the [applicant’s] evidence and finds that in light of the applicant’s ability to obtain a new digital Bangladeshi passport, a visa to Australia, and his ability to depart the country not only on the last occasion but having entered and/or exited Bangladesh five times without difficulty that the is not of adverse interest to the Bangladeshi authorities.

70.    … The Tribunal considered the [applicant’s] evidence but finds that given that he is not an active member of the BNP or the Chattra Dal or an office holder of the Chattra Dal that the was not attacked as claimed, and that he was not in hiding in far for his life prior to his departure from Bangladesh.

71.    … Although [the Tribunal] considered the [applicant’s] explanations for his delay in lodging his protection visa application but finds his delay is not consistent with a subjective fear of persecution.

72.    … The Tribunal does not accept the post-hearing evidence submitted by the applicant to be reliable or trustworthy and finds it not to be credible.

73.    The Tribunal on the evidence finds that there is no real chance that the applicant would face serious harm from any government authority for reasons of political opinion or any other reason or that he is of adverse interest to the authorities in Bangladesh. The Tribunal does not accept that the applicant is of adverse interest to the police, security or other officials, or persons affiliated with the Awami League in Bangladesh.

74.    The Tribunal finds that the applicant never suffered serious harm in Bangladesh.

75.    The Tribunal does not accept that the applicant was of interest or found by the Awami League in Bangladesh.

76.    The Tribunal finds that the applicant is not a person in respect of whom Australia owes protection obligations.

8    Ultimately, the Tribunal affirmed the delegate’s decision to refuse the protection visa.

Proceedings in the Federal Circuit Court

9    The appellant commenced proceedings in the Federal Circuit Court in October 2014 for judicial review of the Tribunal’s decision. The Federal Circuit Court dismissed the application in SZVIE v Minister for Immigration & Anor [2015] FCCA 1327; however, this was set aside by the Federal Court by consent of the parties, and the case was remitted to the Federal Circuit Court. The matter was dismissed again by the Federal Circuit Court in SZVIE v Minister for Immigration & Anor (No 2) [2017] FCCA 1139 in May 2017; the latter dismissal being the decision examined in this appeal.

10    The appellant relied upon four grounds in his application for judicial review that the primary Judge set out at [13]:

1.     The Refugee Review Tribunal made a jurisdictional error when it failed to assess the applicant’s claim for the protection, became biased due to misunderstood or overlooked the oral and written evidence – this affected the matters considered and not considered by the Tribunal.

Particulars: During the hearing in the Tribunal, the applicant, as a truthfull witness, gave all the information about the development of his political affialation with the BNP party. He was active member and Joint Secretary of Jatiotabadi Chttra Dal (a Student Wing of BNP Party of Bangladesh) of the College Committee. He opposed Awami Chattra League (a Student wing of Awami League Party of Bangladesh) unethical activities in the college campus. On 1st October 2012, he was attacked ACL (Awami Chattra Dal) supported students in the campus and suffered injury requiring treatment at the clinic. His family members went to file FIR to the Police Station but they refused to register the complaint. The Police refused to register the Complain against the ACL students because there was pressure from the Awamai League Party Leader of the Munshiganj area not to register any FIR against supporter of Awami League Party. While he was in the Dhaka Hospital for treatment the police came to the applicant’s house and asked from the family members about his whereabout and gave order to attend the police station immediately. Because of the fear of arrest the applicant fled from there. His parents organised all of the things related with Australian Visa. The applicant claims that he has already witnessed the police treatment with the BNP supporters who is always at risk of life when they are caught or arrested by the police.

The applicant claims that the Tribunal overlooked and misunderstood the evidence and came on conclusion that the applicant’s evidence is inconsistent assertion on the credibility testimony.

2.     The Tribunal made a jurisdictional error when it framed or asked the questions from the applicant to destroy the credibility of witness. The applicant claims the way the Tribunal raised and asked the questions with regards to BNP part policy was not allowed under the s.424 of the Migration Act. The applicant was denied procedural fairness when the tribunal did not act in a judicial manner.

Particular.

The applicant presented his case in the Tribunal without any legal knowledge background. The way the hearing was conducted was totally unknown to the applicant. The applicant clearly said to the Delegate and the Tribunal that he was subjected to physical harm and mistreatment. He has genuine and realistic fear for life and because of that, at any cost he wanted to leave the country. There was not any option left for him to escape from there. He applied for 456 Visa to come to Australia to participate in a sporting competition. Later on applied for the protection visa. The delay was caused because he was not aware of procedure to lodge the protection visa. The applicant was always truthfull from begining to end of interview in explaining the circumstances in which 56 Visa was granted and made application for the protection visa. The applicant claims that the Tribunal failed to apply proper, genuine and realistic considerations.

3.     The applicant claims that the RRT made a jurisdictional error when it did not Apply the test for persecution according to the rule of the Migration Act.

Particulars:

The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant. The Tribunal ignored all other independent information and came on the conclusion. In making decision, the Tribunal relied fully on the DEFAT Report about the Awami League Party’s attrocities against the BNP party workers which did not include recent deaths of BNP party workers. The applicant claims that it contradicted and undermined the DEFAT Report used for making the applicant’s application for protection visa. The Tribunal failed to assess the applicant’s fear of harm and misapplied the law - this affected the Tribunal’s application to law.

4     The Tribunal made a jurisdictional error when it did not consider applicant’s case Under the complementary Protection Visa Clauses.

Particulars:

The applicant claims he 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 Bangladesh. The RRT ignored the relevant consideration. The Tribunal decision was based on limited information as it stated earlier. It affected the genuineness and grounds of fear of life in Bangladesh. The applicant claims that if he is compelled to go back to Bangladesh he will be arrested and tortured by the police and Awami League Party workers ..

(Emphasis removed. Errors in original document filed in the Federal Circuit Court.)

11    The following orders were sought by the appellant based upon the grounds of judicial review:

1.    An order, issuing a writ of certiorari quashing the decision of the Delegate of the Second Respondent , and the decision of the Tribunal handed down on 26 September 2014 .. .

2    An Order issuing a Writ mandamus remmiting the matter to the Respondent and directing the Second Respondent to reconsider and determine the matter in accordance with law .

3    An injunction restraining the Respondent from acting on the decision of the Respondent Tribunal/ Delegate pending the determination of the application .

4.    An order that the First Respondent to pay the applicant’s costs.

5.    The applicant be allowed to remain in Australia until the decision of the Federal Circuit Court .

(Errors in original document filed in the Federal Circuit Court.)

12    At [16] the primary Judge noted the appellant’s position of having “no problems” with the Tribunal’s decision to affirm the delegate’s decision. His Honour commented that the appellant shared this view in “a disarmingly honest and simple fashion”.

13    In relation to the first ground of review, the primary Judge found that there was “nothing on the face of the available material to suggest any bias or pre-judgement on the part of the Tribunal” (at [17]). As to the second ground of review, his Honour concluded that “there was nothing unfair about the questions put to the applicant” (at [19]). In considering the third ground of review, his Honour found that the Tribunal applied the correct test for persecution pursuant to s 36(2)(a) of the Act (at [21]-[22]). Insofar as concerned the final ground of review, his Honour also held that the Tribunal committed no jurisdictional error (at [25]).

14    The primary Judge held that his Honour was “not persuaded that the Tribunal fell into any of the asserted errors in the amended application” (at [26]). The application for judicial review was dismissed and the appellant was ordered to pay the Minister for Immigration and Border Protection’s (the Minister) costs in the sum of $2,800.

Appeal in the Federal Court

15    The appellant filed his notice of appeal in the Federal Court on 14 June 2017 and relied on the following grounds:

1.    The Court below erred in finding that the Administrative Appeals Tribunal had not failed to properly consider the claims under s36 (2) (a) and 36 (2) (aa) of the Migration Act 1958 (“the Act”).

2.    The Court below erred in finding that the Tribunal failed to comply with s424 (A) or s 424 (AA) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review. The Tribunal took into account information that had been given by the Appellant orally to the Minister’s Department in determining whether the Appellant was a truthful witness. That information was not put to the Appellant in accordance with s424 (A) ort 424 (AA) of the Act. The Tribunal raised concerns which seriously undermined the credibility of the appellant on the basis of following ‘information’ which should have been put formerly under section 424 (a) or Section 424 (aa) to put on notice to the applicant that such information would be the reason or part of the reason for affirming the decision under review and the applicant should have been advised that he can either orally comment or request additionally time to respond in writing.

a.    The appellant’s ability to obtain a new digital Bangladeshi passport within a week without difficulty.

b.     The appellant’s ability to depart the country not only on the last occasion but having entered and/or exited Bangladesh five times without difficulty.

c.    The Tribunal raised concerns on the basis that the appellant provided false information to secure visa to come to Australia. This is an information which should have been put under section 424 (a) or Section 424 (aa).

d.    Delay in seeking protection. Appellant’s arrival date is an information which should have been put under section 424 (a) or Section 424 (aa) to question appellant’s credibility in relation to delay in seeking protection in Australia.

3.    The Court below erred in finding that the Tribunal made jurisdictional error when it failed to assess the appellant's claim for protection, or misunderstood or overlooked the evidence and came to the conclusion that the appellant had no documentation to corroborate his claimed affiliation with the BNP or Chatra Dal. (Para 66 of the AAT decision). The appellant has provided significant documentary evidence from Mr Sona Mia, Chairman, dated 10 July 2014 which corroborate the appellant’s claim of his association with the Chatra Dal. The Tribunal though mentioned in its record that it has the letter (see AAT decision record para 51) but overlooked this evidence when assessing the appellant’s claim of his association with the Chatra Dal and erroneously concluded that the appellant had no documentation to corroborate his claimed affiliation with the BNP or Chatra Dal, student wing of the BNP.

4.    The Court below erred in finding that the Tribunal made jurisdictional error when it failed to consider and asses [sic] relevant consideration or claims articulated by the appellant.

a.    The appellant mentioned that he would face mental harm and suffering if he returned to Bangladesh. The Tribunal failed to consider the above claim either under the Refugee Convention reason or under the Complementary Protection reason.

b.    The appellant mentioned that he would be targeted due to his wealth and implicitly indicated that he would be subjected to extortion. ( See AAT decision record para 35). The Tribunal failed to consider the above claim either under the Refugee Convention reason or under the Complementary Protection reason.

c.    The Tribunal failed to consider and assess the appellant’s claim cumulatively.

16    The appellant sought the following orders in the appeal:

1.    That the appeal be allowed.

2.    That the orders of the Federal Circuit Court made on 29 May 2017 be set aside.

3.    In lieu thereof, that the following orders be made from this Court,

(a)    A WRIT OF CERTIORARI, removing the decision of the second respondent into this Court to be Quashed.

(b)    A WRIT OF MANDAMUS, directing the second respondent to rehear and redetermine the appellant’s application to it according to law.

4.    That the first respondent pays the costs of the appeal, and of the matter before the Federal Circuit Court.

(Original emphasis.)

17    In addition to the notice of appeal, the appellant filed an affidavit annexing the judgment of the primary Judge and the Tribunal’s decision record. I note that on 20 July 2017, the Deputy National Appeals Registrar of this Court made orders for the parties to file further material, including an order requiring the appellant to file and serve written submissions at least 10 days before the hearing. No further documentation was filed by the appellant to support his appeal. The first respondent filed its written submissions on 13 November 2017.

18    The appellant was assisted by a Bengali interpreter at the hearing of the appeal on 20 November 2017.

19    When the hearing commenced, I noted that the appellant had filed very little material and enquired as to whether he wanted to add anything further to his grounds of appeal. The appellant explained that he had “some documents”, but had been unable to bring them from Bangladesh. The appellant asked whether he could obtain the documents and submit them to the Court at a later date.

Consideration

20    With respect to the appellant’s request to submit further evidence, and as a general proposition, I note that it is not the role of this appellant Court to determine the facts of the case. I indicated that this would not be possible for the appellant to provide the Court with further information at a later date in circumstances where the appeal was presently before the Court and relevant documentation should have been put to the Tribunal, and there was no indication by the appellant as to when that documentation would be available (if ever).

21    In the absence of any further documentation, the appellant orally submitted that he had nothing further to add to the notice of appeal and the decision records provided to the Court by way of affidavit.

22    In my view, the appeal should be dismissed and the appellant ought to pay the first respondent’s costs for the following reasons.

23    In relation to ground 1, I understand that the appellant alleges that the Tribunal “had failed to properly consider” his claims rather than “had not failed to properly consider” those claims. The meaning of “properly consider” is unclear. In any event, a fair reading of the decision of the Tribunal is that the Tribunal understood the appellant’s claims for protection and assessed the appellant’s evidence in respect of those claims. Indeed, the heading before [4] of the Tribunal’s decision is “CONSIDERATION OF CLAIMS AND EVIDENCE”, and the Tribunal’s consideration and examination extends over many pages. The fact that the Tribunal did not accept the appellant’s claims does not, of itself, mean that the Tribunal had not properly considered his application.

24    Section 424AA of the Act requires the Tribunal, if the Tribunal orally gives an applicant clear particulars of any information the Tribunal considers would be relevant to affirming the decision under review, to, in summary, ensure the applicant understands why the information is relevant, orally invite the applicant to comment or respond, advise the applicant of the opportunity to seek additional time to comment or respond, and adjourn the review if necessary. Section 424A of the Act requires the Tribunal to, in summary, give the applicant clear particulars of any information the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, ensure the applicant understands why it is relevant, and invite the applicant to comment or respond. In ground 2, the appellant claims the Tribunal failed to comply with these sections of the Act by failing to put to the appellant information that had been given orally by the appellant to the Department. The appellant particularises this information as being the appellant’s ability to obtain a new passport within a week, his ability to depart the country without difficulty, the false information he had provided to enter Australia, and his delay in seeking protection. The appellant claims that as a result of this information, the Tribunal raised concerns undermining the credibility of the appellant.

25    Insofar as concerns the information particularised at ground of appeal 2(a)-(d), I note:

    In relation to particulars 2(a) and 2(b), it appears that the appellant gave that information to the Tribunal rather than the other way around. To that extent, I am unable to see the relevance of ss 424AA and 424A.

    In relation to particular 2(c), it is unclear what concerns the appellant alleges were raised by the Tribunal on the basis that the appellant provided false information to secure a visa to come to Australia. Certainly, such “concerns” are not evident from the Tribunal’s decision.

    In relation to particular 2(d), the appellant’s delay in applying for a protection visa did not, of itself, undermine his claims for protection so far as concerned the Tribunal’s decision. To that extent, I am unable to identify the relevance of s 424A.

26    In relation to ground 3, the appellant alleges that the Tribunal overlooked evidence of his claim of association with the Chattra Dal. I do not accept this allegation. The Tribunal examined evidence of the appellant concerning his claims of association with Chattra Dal at [58], [65] and [66] of its reasons. At [66], the Tribunal noted the appellant had no documentation to corroborate his claimed affiliation with Chattra Dal because the documentation was in Bangladesh – this observation is consistent with the oral submissions by the appellant yesterday in Court. The reference by the appellant to “significant documentary evidence from Mr Sona Mia” does not support the appellant’s claim, in that the letter is headed “Regarding provide permanent shelter for a distressed person” and simply states that the appellant “was involved in the politics of Chatra Dal”.

27    In relation to grounds 4(a) and 4(b), having rejected the appellant’s claim of fearing harm in Bangladesh from AL supports, the Tribunal was not required to consider whether the appellant would suffer mental harm perpetrated by AL supporters or whether the appellant would be subject to extortion by them.

28    So far as concerns ground 4(c), I am unable to identify the exact nature of the appellant’s criticism of the Tribunal’s reasons and its alleged failure “to consider and assess the appellant’s claim cumulatively.” In SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 Barker J at [135] et seq noted – and rejected – the proposition raised in that case that the Tribunal was obliged to consider some “cumulative” basis for a claim of refugee status. In the case before me, there is no particularisation or supporting submissions to explain this aspect of the appellant’s case. In my view, it is not substantiated.

29    The appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    21 November 2017