SZTKD v Minister for Immigration and Border Protection

Federal Court of Australia|2014-11-14|Before: Mortimer J

REASONS FOR JUDGMENT (Delivered Ex Tempore and Revised)

INTRODUCTION AND SUMMARY 1 The applicant has applied for an extension of time in which to appeal from orders of the Federal Circuit Court made on 23 June 2014, where the Court dismissed an application for judicial review of the decision of the Refugee Review Tribunal to refuse the applicant a protection visa: SZTKD v Minister for Immigration and Border Protection [2014] FCCA 1631. 2 For the reasons which follow, the application for an extension of time to appeal the decision of the Federal Circuit Court should be refused.

BACKGROUND 3 The applicant is a citizen of Bangladesh, and first arrived in Australia on a business visa. The visa had been issued for the purpose of the applicant's attendance as a student research fellow at the Commonwealth Heads of Government Meeting People's Forum. He applied for a protection (Class XA) visa on 11 November 2011 and, in support of his application, he claimed he feared persecution in Bangladesh because of his political opinion. 4 The applicant claimed to come from the district of Shariatpur in Bangladesh, where his family were farmers. He claimed his father was a landlord and a wealthy and influential man in the region, who was affiliated with the Bangladesh National Party and was a "patron" of that party. 5 The applicant claimed he had been kidnapped by Awami League cadres as a child and was released only when his father paid the ransom, one week later. His evidence to the Tribunal included descriptions of the trauma this event caused to him, and how it remained a cause of psychological and physical difficulties later in his life. He claimed that, as a very young man, he campaigned for the BNP candidate in his area and publicly opposed an Awami League member, and his father continued publicly to support the BNP campaign. 6 The applicant claimed he was sent to Korea to live with family because of threats made to him by Awami League members. He claimed that, following his return from Korea, he continued to be involved with the BNP as an office bearer, which led to him being attacked by Awami League cadres. The applicant provided a medical certificate to support this claim. He claimed his parents reported the incident to the police who took no action, and that the Awami League member had filed a false case against him. 7 On 31 July 2012, a delegate of the Minister refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act). The delegate did not find the applicant to be an open and honest witness and rejected his account of what had happened to him in the past. The applicant applied for review of the delegate's decision to the Refugee Review Tribunal on 27 August 2012.

THE TRIBUNAL'S DECISION 8 The applicant gave oral evidence and made submissions, represented by a migration agent, at a hearing before the Tribunal on 22 July 2013. The applicant was assisted by an interpreter in the Bengali language at the Tribunal, before the Federal Circuit Court and before this Court on this application. 9 The Tribunal's reasons disclose that, during the course of the hearing, the Tribunal invited the applicant to respond in writing to adverse information pursuant to s 424AA of the Migration Act: The Tribunal explained the consequences of this, in particular that it might find him to be a witness of low credibility and disbelieve his protection claims and that it could proceed to affirm the delegate's decision. The Tribunal explained his options for comments/response including that he may request more time by way of an adjournment or time for a written reply. In relation to his political involvement, the applicant said he had only found out some of the details about his case, when speaking to his father after the Departmental interview. Also he did not know he had to provide all information. He said that he had no education, and does not have the love or care of his parents and feels pain. 10 The Tribunal granted leave to the applicant to provide a psychological report. On 9 September 2013, the applicant filed a report by a consultant psychiatrist. The Tribunal's reasons set out the content of the report. The report stated that its purpose was to assess the impact of the applicant's kidnapping as a child. It sets out the impact of the kidnapping on the applicant's mental health, which the psychiatrist said was consistent with a disrupted childhood and a "perpetual state of fear". 11 On 24 September 2013, the Tribunal affirmed the decision of the delegate to refuse to grant a protection visa to the applicant. The Tribunal accepted the applicant was kidnapped as a young child, and that his father had been involved with the BNP. It accepted the applicant had been bullied by Awami League students as a child. However, in other respects the Tribunal found the applicant to be of "low credibility". Its reasons state (at [55]-[56]): I do not accept that the applicant campaigned in the 2008 elections, for the following reasons. The applicant's evidence has been that his father was concerned for him because of the mental health effects of the kidnapping and arranged for him to see numerous doctors and to travel overseas to visit doctors. The applicant has said that around that time he was sick for ten to fifteen days a month, and was crying at night. It does not seem feasible in this context that his father would allow him, as a sixteen year old with medical issues, to campaign and speak against the very person who had allegedly kidnapped him, and who supposedly was involved in a number of deaths. I also do not accept that his father was threatened with death in 2007 as he has stated that his father was involved with the 2008 election without incident. My concern about this evidence was exacerbated by the contradictory and somewhat confusing testimony given by the applicant at the Department and Tribunal hearings. At the Tribunal hearing he said that his father did not want him to be involved as he was young and sick. However, in his Departmental interview, he had said that his father thought he should get involved to become braver and have practice in public speaking. When asked about this contradiction at the Tribunal hearing, he said that in the Department interview he was referring to later involvement in 2011. When I put to him that his evidence referred to 2008, he then said that first his father did not want him to go and then said he should be involved with confidence. I do not accept his explanation as his father's attitude to campaigning is not something which would be forgotten. Other aspects of his evidence about this campaign were contradictory. For example at the Departmental interview, he said he campaigned for 3 days and at the Tribunal hearing he said it was a week, which he later said, when asked about the contradiction, was 3 days to a week. … In light of all these inconsistencies and the implausibility of his account, I do not accept that he was involved in the election or that he was threatened after it. I also do not accept that he went into hiding after this. I do not accept that he was sent to Korea because he feared for his life. While the general security situation in Bangladesh may have been a factor, the applicant has referred to his medical problems during this time and it may well be the case that he was sent to Korea for this reason. He has indicated that he returned freely to Bangladesh in 2011 indicating that he did not have a genuine fear. Although he says he was afraid and returned because he was homesick and did not like living with his uncle who was strict, I do not accept that for these reasons he would return if he was genuinely afraid for his life. 12 The Tribunal did not accept that the applicant became involved in politics when he returned to Bangladesh from Korea, or that he held office-bearer roles in the BNP. Consequently, the Tribunal also did not accept that the applicant had been attacked by Awami League members following his return from Korea. The Tribunal gave little weight to the medical certificate, "given the prevalence of document fraud in Bangladesh", as it found, and because it had some concerns the document did not contain reference to the injuries suffered". 13 The Tribunal found the applicant's evidence to be "confused and incoherent". The Tribunal's reasons record the applicant failed to recall key events upon which his claims are based. While accepting that the applicant may have experienced some memory loss due to factors such as post-traumatic stress resulting from the kidnapping, his mental health and separation from family, the Tribunal found that, when considering the totality of the applicant's evidence, it could not be satisfied that he is a credible witness. 14 The Tribunal found when considering all of the applicant's evidence it was not satisfied he was a credible witness. The Tribunal accepted that the relevant country information for Bangladesh before it revealed that political violence against activists is a serious problem in Bangladesh. However, the Tribunal found the country information reported on violence occurring particularly around election time, and did not support the applicant's claim that his family was at risk or that he would likely face serious harm were he to return. The Tribunal concluded that the applicant did not face a real chance of serious harm for a Convention reason and did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act.

REVIEW IN THE FEDERAL CIRCUIT COURT 15 By application dated 16 October 2013, the applicant sought judicial review of the Tribunal's decision, on four grounds: 1. being a jurisdictional error because it did not consider my claim that I made in support of my case. 2. The Tribunal did not accept my political identity. It raised issues about my age to be a leader but legally there was nothing to obstruct me to become a leader in Bangladesh even while I was young. The Tribunal did not accept this just based on assumption that I could not be leader in such a young age which is an error of law, made by the Tribunal. 3.The Refugee Review Tribunal made jurisdictional error in assessing my credibility. 4. I believe I was not given natural justice and the Tribunal did not decide my case according to the law. 16 The Federal Circuit Court considered the applicant's submission that the Tribunal had failed to consider his claims. It also considered his claim that the Tribunal misunderstood his claims with respect to the kidnapping and bullying, and that it did not believe him regardless of what he said. The Court also gave broader consideration to whether it might be said the Tribunal failed to consider the applicant's claims or conduct a bona fide review. 17 Noting that the Tribunal had in fact accepted some of his evidence, it found that the reasons of the Tribunal disclosed it had considered all of the applicant's claims and conducted a thorough and bona fide review and the first ground was not made out. 18 It also rejected the applicant's second ground that the Tribunal had erred in law by not accepting his political identity because he was too young. The Court found the Tribunal relied on more than the applicant's youth to reject his account about his political activities. 19 The Court also found the Tribunal's finding as to the applicant's credibility was open to it on the evidence and was not illogical or unreasonable. 20 On the fourth ground, despite the applicant not pointing to a contravention of any particular aspect of Div 4 of Part 7 of the Migration Act, the Federal Circuit Court considered the relevant provisions, in particular ss 424A, 424AA and 425. It found that the Tribunal did not identify with any particular clarity the matters it had put to the applicant pursuant to s 424AA, but nor did the applicant identify any information which he says should have been provided to him and was not. The Federal Circuit Court concluded there was nothing identified by the applicant to suggest he was denied the opportunity to put his case to the Tribunal or was otherwise not afforded a real and meaningful hearing as required by s 425 of the Migration Act. 21 Finally, the Federal Circuit Court considered a number of submissions made by the applicant about his psychological state and the effect that had on his evidence at the Tribunal. The Court did not accept that there was sufficient evidence the applicant was denied a real and meaningful hearing at the Tribunal by reason of his mental state. The psychiatrist's report was, the Court found, considered by the Tribunal to the extent of accepting what it said about the effect of the kidnapping on the applicant, although the Tribunal did not accept this as an entire explanation of the lack of coherence in the applicant's evidence.

THE APPLICANT'S PROPOSED NOTICE OF APPEAL 22 The applicant filed a draft notice of appeal which sets out the following ground of appeal: That the Federal Circuit Court made an error in finding that there is no jurisdictional error. 23 The applicant also filed an affidavit affirmed by him on 18 July 2014 in support of his application for an extension of time. He states: I had a hearing on 23 June 2014 in Federal Circuit Court. We know that there are 28 days time limits to appeal against any decision. I was waiting for the decision letter to include in notice of appeal to the Federal Court of Australia. But I did not receive any letter of decision until 16 July 2014. I thought it would be wise not to wait for the decision letter from Federal Circuit court of Australia. I better apply for notice of appeal to the Federal Court of Australia before 28 days limit expires. On 17 July 2014 I intended to lodge my notice of appeal to the Federal Court of Australia and I came to know that I had 21 days to appeal not 28 days. If I knew this earlier I would apply before 21 days. I apologise for this mistake.

APPLICANT'S SUBMISSIONS 24 The applicant filed written submissions with the Court on 12 November 2014, after the filing of the Minister's submissions. Those submissions state: I made this submission to the Federal Court of Australia in regards to the following grounds (i) The Federal Circuit Court Judge erred in law to come to a decision dismissing my application not finding that the tribunal did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party (BNP) prior to my departure from Bangladesh (ii) The Honorable Federal Circuit Court of Australia Judge did not find that there was lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal failed to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application. The Tribunal failed to consider that I was kidnapped in 2005 because of my family involvement with Bangladesh Nationalist Party (BNP) The tribunal failed to consider my claim that I became a target of one of the Awami League Members. At about 8 pm on 14 August 2011, while I was returning home, I was attacked by a group of Awami League cadres led by that man ("the Awami Cadres' Leader") and beaten almost to death. I was hospitalized for seven days. The tribunal failed to accept my political identity because that conclusion was just based on an assumption that I was too young. (iii) The Honourbale Federal Circuit Court of Australia Judge made errors of jurisdiction not considering the Tribunal's failure to give me a reasonable opportunity to respond to independent evidence in possession of the Tribunal which suggests that I shall not be a victim of harassment of my political belief if I returned to Bangladesh. (iv)The Federal Circuit Court of Australia Judge made error to find that the Tribunal failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing. (v) The Federal Circuit Court of Australia Judge erred in not finding that the tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa. (vi) The Federal Circuit Court of Australia Judge erred in not finding that the tribunal refused my application on the ground that I would face punishment would be completely politically motivated. (vii) The Federal Circuit Court of Australia Judged erred in law not finding that the Tribunal failed to consider that I was discriminated for my political belief. The tribunal failed to consider that I shall be victim of significant harassment for my political belief if I returned to Bangladesh now or in the foreseeable future and my persecution is Convention related. 25 At the hearing, through an interpreter, the applicant repeated that the Tribunal did not believe his story. He emphasised that he could not go back to Bangladesh.

THE MINISTER'S SUBMISSIONS 26 At the hearing, the Minister's representative made some short submissions about the applicant's written submissions, to the effect that the Federal Circuit Court has dealt correctly with the arguments, that some of the arguments were not claims made before the Tribunal and, in the case of one argument, it had no reasonable prospects of success because of the restrictions in the Migration Act. 27 In his written submissions, recognising the delay is only four days, and taking into account what is said by the applicant in his affidavit, the Minister quite properly accepts that there is a satisfactory explanation for the delay in filing the appeal. The Minister also accepts that there would be no prejudice to him in granting the applicant the extension of time sought. However, the Minister contends that the application should be refused on the basis that the appeal, should it proceed, would have no reasonable prospects of success. 28 The Minister submits that the ground set out in the applicant's draft notice of appeal does not identify any error in the decision of the Federal Circuit Court, such that, without particularising the error, the applicant would have no reasonable prospect of success on appeal. In any event, the Minister submits, the Federal Circuit Court's decision is not affected by error and the application for an extension of time should be refused.

EXTENSION OF TIME: APPLICABLE PRINCIPLES 29 The notice of appeal in this proceeding should therefore have been filed on or before 14 July 2014, which would be within 21 days after the date on which the judgment appealed from was pronounced or the order was made: r 36.03 of the Federal Court Rules 2011 (Cth). The applicant is thus four days out of time. 30 In considering whether to extend the time in which a notice of appeal may be filed, the Court takes into account three principal matters: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted and the prospects of success of the appeal if an extension of time were to be granted. These considerations were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and have been applied consistently in this Court, by single judges and Full Courts, in and outside migration appeals. 31 The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. 32 Even in circumstances where (as here) there is an acceptable explanation for the delay, the prospects of success of any appeal may be determinative of the manner in which the Court's discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and other parties where there is no realistic prospect the appeal will succeed if an extension of time is granted. Such a process also exposes an applicant to the risk of significantly greater adverse costs orders if the appeal is unsuccessful.

CONSIDERATION 33 There being no question of prejudice to the Minister and there being an explanation for the very short delay in filing the appeal, the only question is whether the appeal enjoys sufficient prospects of success to warrant an extension of time. 34 In this case, even adopting a broad and generous approach in the applicant's favour on the basis that he is self-represented and considering what is at stake for him, there is nothing in the material to persuade me that his appeal has any reasonable prospects of success. 35 The first difficulty for the applicant is, as the Minister points out, that his notice of proposed appeal nominates only the most general ground of appeal. It is not a ground that points to a particular error by the Federal Circuit Court and nor was any particular problem advanced by the applicant in oral submissions. 36 Second, the applicant's written submissions confuse the function of the Tribunal and the function of this Court. The Tribunal is required to make the correct or preferable decision, in accordance with the terms of the Migration Act, as to whether an applicant satisfies the criteria for a visa she or he has applied for and whether the delegate's decision should be affirmed or set aside. 37 The only function of this Court is to ensure the Tribunal made a decision in accordance with Australian law and in a procedurally fair way, insofar as the Migration Act and the common law obliges it to do so. I accept that is a difficult distinction for any lay person to understand, let alone a person in the position of the applicant, but that is the distinction that must be applied in considering the applicant's prospects of success on the appeal. 38 Most of the applicant's written submissions, which I have extracted at [24] above, suggest the Federal Circuit Court erred by not agreeing with the applicant that the conclusions of the Tribunal were wrong. Although the applicant uses the language of "failed to consider" when describing what was wrong with the Tribunal decision, it is apparent the applicant means "failed to find in my favour". To say the Federal Circuit Court erred because it did not agree with the applicant that the Tribunal failed to find in his favour is to continue the confusion between the Tribunal's role, and the Court's role. 39 The Federal Circuit Court's reasons carefully examine the applicant's arguments and the Tribunal's reasons. The Court also goes beyond the applicant's arguments to consider other possible bases for jurisdictional error, but it finds none. I am not satisfied the applicant has raised in his proposed notice of appeal or in his written submissions any contentions about error in the Federal Circuit Court which would warrant an extension of time being granted to him, nor is any error apparent from the Federal Circuit Court's reasons. 40 The application for an extension of time must be refused. There is no basis in the material before the Court for anything other than the usual order as to costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Migration Act 1958(Cth)ss 36(2)(aa), 65, 424A, 424AA, 425

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