SZSUH v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 This is an application for an extension of time and leave to appeal from a judgment of the Federal Circuit Court. In that judgment the primary judge dismissed the applicant's application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (Tribunal), refusing to grant the applicant a protection visa. The primary judge dismissed the application on the basis that there was no arguable case for relief. 2 For the reasons that follow the application for an extension of time and leave to appeal from the judgment is refused. 3 The applicant is a citizen of Bangladesh. He arrived in Australia in August 2011 and shortly thereafter applied for a protection visa under s 36 of the Migration Act 1958 (the Act). In May 2012, a delegate of the first respondent (the Minister) refused to grant a protection visa to the applicant. The applicant then applied to the Tribunal for a review of that decision. 4 It is unnecessary to set out at length the claims and evidence that provided the basis for the applicant's visa application before the delegate and on review in the Tribunal. Suffice it to say, the applicant claimed to have a well-founded fear of persecution should he return to Bangladesh for reasons of his actual or perceived political opinions or affiliations. 5 The applicant had been a police officer in Bangladesh for many years until he commenced service in a police unit attached to the United Nations Mission in Timor-Leste in November 2010. The applicant's evidence before the Tribunal, consistent with what he had claimed in his visa application, was that before joining the police force he had been active in politics and was a supporter of the Bangladesh Nationalist Party (BNP). As a result of this political activity and affiliation he was subjected to attacks and persecution at the hand of other police who were supporters of the rival Awami League. 6 The attacks and persecution continued, so the applicant claimed, during his posting in Timor-Leste. The applicant claimed, largely on the basis of these past acts of persecution and his continued political affiliation, that if he returned to Bangladesh the politically-motivated attacks would continue. He feared that he would be dismissed from the police force, he would have false charges brought against him and he would be jailed. 7 On 8 February 2013 the Tribunal decided to affirm the decision of the delegate to refuse the grant of a protection visa. The Tribunal provided a detailed statement of its decision and reasons. The essential reason the Tribunal affirmed the decision to refuse the grant of a protection visa to the applicant was that it did not believe much of the evidence given or relied on by the applicant. Whilst the Tribunal did accept some of the applicant's evidence and claims, it rejected those parts that turned out to be critical to his claim that Australia owed him protection obligations. The reason the Tribunal rejected the critical aspects of the applicant's evidence was that it did not consider the applicant to be a credible or reliable witness. 8 The Tribunal gave thorough and detailed reasons for rejecting the evidence and claims that it did. It pointed to numerous inconsistencies, implausibilities and inadequacies in the evidence. It is unnecessary to detail the Tribunal's findings in respect of all the applicant's claims that formed the basis of his visa application. The Tribunal summed up its findings in paragraph [55] of its reasons in the following terms: In the Tribunal's view there is no plausible evidence before it that the applicant has suffered persecution in Bangladesh, or that he has a real chance of suffering persecution there, from political opponents, Awami League members/supporters, the police or from anyone else, because of his political opinion or imputed political opinion, because he is a member of a particular social group, or for any other Convention reason, either now or in the reasonably foreseeable future, if he returns to Bangladesh. 9 The applicant was plainly dissatisfied with the way the Tribunal conducted and decided his review application. He applied to the Federal Circuit Court for judicial review of the Tribunal's decision on the apparent basis that the Tribunal had either failed to properly exercise its jurisdiction or had exceeded its jurisdiction in conducting the review. 10 The applicant's initial application filed in the Federal Circuit Court was bereft of any meaningful detail as to the error or errors said to have been made by the Tribunal. As a result the primary judge set the matter down for hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001. At such a hearing, known as a "show cause" hearing, the Federal Circuit Court can, if not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application. Rule 44.12(2) makes it clear that such a dismissal is interlocutory in nature. 11 Prior to the show cause hearing, the applicant filed an amended application. That amended application contained two grounds, each containing details or particulars of the alleged errors. At the show cause hearing, the primary judge gave detailed consideration to each of the grounds and the particulars thereto, as well as to the submissions made by the applicant. His Honour concluded that the application did not raise an arguable case for the relief sought and dismissed it accordingly. 12 The first ground of the amended application in the Federal Circuit Court was that the Tribunal had failed to give any weight to the documents relied on by the applicant. The particulars of this alleged error included that the Tribunal had failed to verify the applicant's claims and documents despite his request that it do so, and that the Tribunal had, accordingly, denied him procedural fairness. The primary judge found that neither this ground, nor the particulars thereto, raised an arguable case for the grant of the relief claimed. His Honour found that the weight to be given to evidence is entirely a matter for the Tribunal and that the Tribunal's findings in relation to the so-called supporting documents were open to it. There was, accordingly, no reviewable error arising from the fact that the Tribunal ultimately gave no weight to the documents. 13 In relation to the particulars of this ground contained in the amended application, the primary judge found that the Tribunal was under no general duty or obligation to investigate or seek to verify the applicant's claims or documents. The primary judge found, in effect, that the applicant's case did not throw up any obvious inquiry about a critical fact, the existence of which was easily ascertainable. His Honour referred, in that respect, to Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25] and Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60], as well as other authorities concerning the very limited circumstances in which the Tribunal might have a duty to investigate. As the primary judge also pointed out, it was somewhat surprising that the applicant had requested the Tribunal to make inquiries of the very government and its instrumentalities that were supposedly the source of his fears of persecution. 14 As for the particular alleging denial of procedural fairness, it was, and is, unclear precisely how the applicant claims that he was denied procedural fairness. Bearing in mind that this allegation was a particular of a ground in the amended application alleging that the Tribunal erred in giving little or no weight to the applicant's supporting documents, the allegation appears in some way to have related to that point. In any event, the primary judge concluded that there was no arguable case of denial of procedural fairness. His Honour was of the view that a fair reading of the Tribunal's reasons indicated that the issues concerning the documents relied on by the applicant were fully ventilated at the Tribunal hearing. 15 Ground 2 of the amended application before the Federal Circuit Court contended that the Tribunal failed to assess the applicant's claims that he was the subject of persecution on the basis of his and his family's political involvement with the BNP. The particulars to this ground referred to some parts of the applicant's evidence concerning the applicant's family's association with the BNP and the existence of political violence in Bangladesh and noted that this evidence had been accepted by the Tribunal. The particulars then asserted that the Tribunal's ultimate decision was inconsistent with the Tribunal's acceptance of this evidence. The primary judge held that there was no arguable case in relation to this alleged error. To the extent that the applicant's contention was that the Tribunal had not considered his claims relating to his association with the BNP, it was clear beyond argument that the Tribunal had considered those claims. To the extent that the particulars raised an issue of illogicality or irrationality, the primary judge found that there was no irrationality. The Tribunal's decision was reasonably open on the evidence. 16 The applicant seeks an extension of time and leave to appeal from the judgment of the Federal Circuit Court. Leave to appeal is required because the dismissal of the applicant's case pursuant to r 44.12 of the Federal Circuit Court Rules 2001 is an interlocutory decision. Section 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a judge gives leave. An extension of time is required because r 35.13 of the Federal Court of Australia Rules 2011 provides that an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced. The applicant filed his application for leave to appeal nine days outside that time period. 17 A consideration relevant to the exercise of the Court's discretion to extend the time within which an application for leave to appeal may be filed is the likelihood of leave to appeal being granted: Croker v Philips Electronics Australia Limited [2000] FCA 1731. In considering whether leave to appeal should be granted one limb of the relevant test involves a consideration of whether the decision is attended with sufficient doubt to warrant it being reconsidered by an appellate court: DÉcor Corporation Pty Ltd v Dart Industries Incorporated (1991) 33 FCR 397 at 398 - 400. 18 It is convenient, then, to first consider whether the applicant has demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant the grant of leave. The application for leave and the draft notice of appeal raise five proposed grounds of appeal. They are: 1. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration of my oral evidence regarding the persecutions, humiliations and suffering I experienced in Bangladesh for my political belief in Bangladesh Nationalist Party's (BNP) politics. It is an error of law 2. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to varify my claims and documents and evidences that I submitted during the application process and failed to enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse materials. If I would be given the opportunity it could have led to a different decision by the Tribunal. It is an error of law. 3. The Tribunal denied the natural justice in determining my review application that the Tribunal biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such it vitiated the said purported decision. It is an error of law. 4. The Tribunal in its decision has mentioned without any valid reason that I will have no problem if I return back to my country of residence, Bangladesh. The Tribunal totally ignored my the persecutions as an activists of BNP in spite of providing adequate documents in support of my claims. In fact the tribunal should have given the opportunity to me to comment on. It is an error of law. 5. The Tribunal failed to consider my fear of persecution at the time of oral evidence and ignored with bias. It is an error of jurisdiction. 19 Three points may be made about these grounds. First, none of them assert error on the part of the Federal Circuit Court in disposing of the applicant's judicial review application. It is that decision which is properly the subject of the leave application, not the decision of the Tribunal. 20 Second, for the most part the proposed grounds assert errors on the part of the Tribunal that do not correspond or engage with the grounds of review that were advanced in the Federal Circuit Court. Some new grounds or contentions are advanced. There is, however, no attempt to explain why these grounds were not advanced below. Other grounds roughly correspond with arguments that were put below, but are expressed in different terms. 21 Third, the proposed grounds are expressed in the most general and formulaic of terms. Ms Given, in her submissions on behalf of the Minister, characterised them as pro forma or "boilerplate" grounds that have been advanced in almost identical terms in numerous other judicial review applications. There may be some merit in that description. However they may be characterised, they provide virtually no assistance to the Court in its attempt to ascertain the nature of the error asserted by the applicant. Nor, at the end of the day, do they advance the applicant's case. 22 The applicant has sworn an affidavit in which he repeats the contentions advanced in the draft notice of appeal. Aside from one paragraph that seeks to explain the delay in filing the application, the affidavit is more in the nature of written submissions. It is read on that basis. 23 The applicant has also filed written submissions that largely mirror the terms of the affidavit. Neither the affidavit nor the written submissions contain anything of substance to explain or develop the proposed grounds of appeal. 24 Unfortunately the applicant's oral submissions also do little to advance his case. I will return to his oral submissions in due course. 25 Dealing with the proposed grounds of appeal, ground 1 contends, in effect, that the Tribunal did not address the applicant's claims of persecution based on his connections with the BNP. A similar contention was made in the Court below and was rejected by the primary judge. The rejection of this contention below was plainly correct. Even the most cursory reading of the Tribunal's detailed and careful reasons reveals that the Tribunal considered all the evidence and claims advanced by the applicant, including his evidence concerning his involvement and connection with the BNP. This ground is, in reality, simply an attack on the merits of the Tribunal's decision. Such an attack was not an available ground of review in the Court below, nor can it provide the basis for a ground of appeal in this Court. 26 The second proposed ground of appeal contends, in effect, that the Tribunal denied the applicant procedural fairness on two bases: first, because it failed to verify his claims and documents; and second, because it did not give him the opportunity to explain or reply to adverse materials. 27 Neither of these contentions has any merit. The contention that the Tribunal should have verified the applicant's claims and documents largely mirrors a contention that was put in the Court below. It was correctly rejected by the primary judge for the reasons he gave. In the circumstances of this matter, the Tribunal was under no obligation to verify or investigate the applicant's claims and documents with the government of Bangladesh or anyone else, other than the applicant himself at the hearing. This, the Tribunal plainly did. 28 There is also no basis whatsoever for the applicant's claim that the Tribunal did not give him the opportunity to reply to adverse materials. The applicant gave no details of the relevant adverse materials that he was supposedly not given the opportunity to reply to. A cursory reading of the Tribunal's decision clearly reveals that at the hearing the Tribunal discussed at length with the applicant all potential adverse information. There is no evidence that the hearing was otherwise than scrupulously fair. It should also, of course, be noted that Div 4 of Part 7 of the Act contains, in effect, an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Tribunal (see in particular s 422B). The applicant has not sought to demonstrate that the Tribunal failed to comply with any of its statutory obligations in Div 4 or any other part of the Act. 29 The fairness of the Tribunal hearing and the Tribunal's adherence to the provisions in Div 4 is demonstrated by the way the Tribunal dealt with information it received after the hearing that might have been adverse to the applicant's case. That information was from an anonymous source alleging that the applicant was not telling the truth about his claims to be a refugee. Following the receipt of that information the Tribunal wrote to the applicant pursuant to s 424A of the Act advising him of the nature of that information and inviting him to provide a response. The applicant did provide a response to the Tribunal's communication. In the end the Tribunal made clear in its decision that, given the nature of the information and the applicant's response to it, the Tribunal placed no weight on the information and considered that it was not reliable. 30 Ground 3 of the proposed notice of appeal also alleges a denial of natural justice and includes a claim of apprehended bias. That contention was not advanced below. That is perhaps not surprising given that it has no merit whatsoever. The applicant has given no particulars of this allegation. The ground is supported by nothing more than bald assertion. Nor has he pointed to anything that could justify it, let alone make it out. For the reasons already given, the Tribunal dealt with this application for review with scrupulous fairness. There is no evidence of bias, actual or apprehended. 31 Grounds 4 and 5 of the proposed notice of appeal appear to do nothing more than repeat the contentions already made in grounds 1, 2 and 3. They have no merit for the reasons already given. They amount to nothing more than an attack, albeit in the most general of terms, on the merits of the Tribunal's decision. 32 The applicant's oral submissions before the Court also raise no arguable ground of appeal. The applicant's principal complaint in his oral submissions was that the Tribunal disbelieved him and did not accept his evidence, in particular his supporting documents. He contended that even if there was general information that indicated that document fraud was prevalent in Bangladesh, that did not mean that everybody was fraudulent. Specifically, it did not mean that the applicant's documents were fraudulent. The applicant complained that if the Tribunal had a legitimate concern about the documents, it should have taken steps to have them examined and verified. The last of these points has already been dealt with. The primary judge was correct in concluding that the Tribunal was not obliged in the particular circumstances of this case to attempt to verify or conduct investigations in relation to the applicant's documents. 33 The difficulty for the applicant's submission concerning the rejection of his documents is that it misconceives the Tribunal's reasons for rejecting the documents. The Tribunal essentially rejected the documents because it found that the applicant was not a reliable or credible witness. The prevalence of document fraud in Bangladesh was, at most, a secondary reason. So much is clear from paragraph [54] of the Tribunal's reasons. In that paragraph the Tribunal says: The Tribunal discussed with the applicant, and considered, each of the documents produced by the applicant in support of his claims for protection. The applicant told the Tribunal that he obtained these documents from Bangladesh for the purposes of his application for protection visa application. Given its concerns about the applicant's credibility and given the country information about the prevalence of document fraud in Bangladesh which the Tribunal consulted, and which it discussed generally with the applicant at the hearing, the Tribunal considers that the documents from Bangladesh produced by the applicant in support of his claims are not reliable evidence of the facts in them. 34 A fair reading of the Tribunal's reasons as a whole indicates that it did not reject the applicant's evidence arbitrarily. It considered all his evidence and gave detailed reasons for accepting some parts of it and rejecting other parts. It also gave the applicant ample opportunity to respond to its concerns about his supporting documents. 35 There is, accordingly, no merit in any of the proposed grounds of appeal or any of the points raised in the applicant's submissions. I should add that, putting aside these grounds and submissions, I have carefully reviewed the decisions and reasons of the Tribunal and the judgment of the primary judge. I can discern no error in the way the Tribunal conducted and determined the applicant's review application. Nor can I discern any error in the judgment of the primary judge. It follows that the decision in respect of which leave to appeal is sought is not attended by sufficient doubt to warrant the grant of leave. 36 That being so, I decline to extend time to file the application for leave because to do so would be an exercise in futility. Leave to appeal would, in any event, be refused. 37 I should also note that for the applicant to obtain an extension of time, he was required to give an adequate explanation for his failure to file his application within time. In his affidavit, the applicant seeks to explain the delay on the basis that he was unaware that the time limit was 14 days. He says that the interpreter at the Federal Circuit Court told him it was 21 days. He also adds that he was sick for a couple of days, though he does not say when, or how or why this sickness affected his ability to file the application within time. 38 Even accepting what the applicant has deposed to in his affidavit, I do not consider it to be an acceptable or adequate explanation. Even if he thought the time limit was 21 days, he did not file his application within that time. Given the serious nature of the application, it could, in any event, scarcely be regarded to be satisfactory to simply rely on something which was apparently said to him by an interpreter without, in some way, seeking to confirm or verify this information. The unsatisfactory explanation provides an additional reason to refuse the applicant leave for an extension of time. It must be said, however, that if there was even a scintilla of merit in the leave application, it is doubtful that the inadequacy of the explanation alone would have justified refusal of the application to extend time. 39 Accordingly, I dismiss the application. 40 The Minister has applied for costs of the unsuccessful application. In my view, there is no reason why costs should not follow the event. Accordingly, the orders of the Court are that the application for extension of time and leave to appeal is dismissed and the applicant is to pay the respondent's costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.