SZUAD v Minister for Immigration and Border Protection

Federal Court of Australia|2015-11-23|Before: Kerr J

REASONS FOR JUDGMENT 1 This application is brought before the Court pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) (the "Rules") whereby the applicant is seeking an extension of time in which to seek leave to appeal from the judgment and orders of the Federal Circuit Court of Australia. 2 The orders were made on 15 October 2014. In those orders, the Federal Circuit Court of Australia dismissed an application for judicial review of a decision of the then Refugee Review Tribunal ("the Tribunal") pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) ("FCCR") (see SZUAD v Minister for Immigration & Anor [2014] FCCA 2356). As a consequence, any further proceedings for review require leave of this Court because the decision of the Federal Circuit Court of Australia in dismissing the application on that basis is interlocutory (r 44.12(2) of the FCCR). 3 In those circumstances, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires leave to be sought and obtained for a matter to proceed as an appeal. Additionally, the applicant would require an extension of time because r 35.13 of the Rules requires an application for leave to appeal to be filed within 14 days after the date on which the judgment was pronounced or the order was made. So in issue is whether an extension of time in which to seek leave to appeal should be granted and, if so granted, whether leave to appeal should be granted. The first respondent, the Minister for Immigration and Border Protection ("the Minister") who was represented in these proceedings by Ms Hillary, opposes the grant of an extension of time and the grant of leave to appeal on the basis that there has been moderate delay and the proposed substantive appeal is without merit. 4 It is well settled law that there are two primary considerations for this Court in determining whether to grant an extension of time. The first of those considerations is whether there is any explanation for the delay and the acceptability of any explanation for delay and, secondly, whether, if an extension of time were granted, the application would have any merit: SZVGN v Minister for Immigration and Border Protection and Another [2015] FCA 860 at [15]. In considering delay, prejudice to another party is also, of course, highly relevant. But in this case no claim has been made that the Minister would be prejudiced because of the delay. 5 In an affidavit filed with the application now before the Court, the applicant gives an explanation for his delay. His explanation was fleshed out in discussion between the bench and the applicant. The applicant informed the Court that he was aware of the time limit for seeking review of the Federal Circuit Court of Australia judgment but was advised by his lawyer that he was entitled to commence a fresh application for a protection visa from the very beginning which he sought to do. It was only after that application was predictably refused that he gave attention to the requirement to seek leave to file out of time. 6 The Minister submits that those matters do not constitute an adequate explanation for the delay. The delay was significant and amounted to some eight months. However, Ms Hillary for the Minister accepted that it was whether the proposed notice of appeal had sufficient prospects of success that is likely to be determinative. 7 Paragraph 18 of the Minister's written submissions are as follows: It is accepted that whether the proposed Notice of Appeal has sufficient prospects of success is likely to be determinative, with respect to the grant of both an extension of time and leave to appeal. 18.1 In this respect, in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court held that leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. 8 In regard to the matters referred to in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ("Décor Corporation"), Ms Hillary submits that the grounds that have been put forward by the applicant as the basis for a proposed appeal lack all merit.

The facts 9 It is convenient to refer to, but in summary form only, the nature of the claims made by the applicant. They were set out in a very clear, if abbreviated, form in paragraph 2 of the Tribunal's reasons. No attack is made of the Tribunal's statement of the applicant's claims. Paragraph 2 of the Tribunal's reasons is as follows: The applicant has provided a detailed statement in support of his claims. He claims to fear returning to Bangladesh because he will be harmed by the Awami League as a result of his involvement with the Bangladesh Nationalist Party (BNP). He claims that he joined the BNP in 2008 and in 2010 was appointed as Joint Secretary of Bangladesh Jatiotabadi Jubodol, (location omitted). In May 2012 he was targeted by some Awami League members who wanted him to join the Awami League. In October 2012 he was threatened with arrest and so went into hiding. In November 2012 he was attacked with stones. After arriving in Australia an arrest warrant has been issued for him alleging that he put up posters for the banned political party. 10 However, the Tribunal disbelieved the applicant and affirmed the decision of the Minister's delegate not to grant the applicant a Protection (Class XA) visa. The Tribunal gave little weight to certain documents he had tendered, finding them to have been fraudulent. It rejected the applicant's account with respect to his asserted claims as internally inconsistent and lacking in credibility. The Tribunal was satisfied neither that the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention nor that he met the criteria for complementary protection.

The proposed grounds of appeal 11 As reproduced from the applicant's draft notice of appeal, the proposed grounds of appeal upon which the applicant intends to rely, if leave is granted, are fourfold: (1) The appellant was deprived of receiving procedural fairness as the Tribunal was influenced by the contradictory (DFAT) information. The trial judge erred in considering this issue. (2) The appellant was not provided an opportunity to comment, the materials which the Tribunal relied on its decision. The trial judge assessed this matter but erred in considering the tribunal's treatment. (3) The appellant was implicated a false cases which compelled the applicant to leave the country. The tribunal considered into negative sense which raised question to accord procedural fairness. (4) The Federal Circuit Court made error of law by not finding that the Second Respondent made jurisdictional error by not considering the integer of the appellant's claim. Particularly, a false case was filed against the appellant prior to his leaving the country of origin. 12 Whilst the grounds of appeal are expressed in language lacking precision and particularisation, the Court was assisted by conversation with the applicant and Ms Hillary to clarify the meaning intended to be expressed. I am grateful for Ms Hillary's willingness to address the substance, rather than arguable deficiencies, of the proposed grounds. Her approach was in the best traditions of the Commonwealth as a model litigant. If leave is to be granted, it will be on terms that require their amendment to more clearly articulate the jurisdictional errors asserted.

Proposed ground 1 13 I proceed on the basis that ground 1 is an intended reference to, and should be understood as a claim that the Tribunal acted in a procedurally unfair manner in being influenced by the information it referred to in paragraph 19 of its reasons regarding the prevalence and ease of obtaining fraudulent documents in Bangladesh. Paragraph 19 records the Tribunal's reasoning as follows: Also, the provision of two separate letters of support which each attest to the applicant holding different positions within the BNP raises concerns for the Tribunal in relation to the authenticity of those letters. As discussed with the applicant at the hearing the information available to the Tribunal indicates that forged or fraudulently obtained documents are readily available in Bangladesh. The conflicting evidence in the letters, the late provision of the documents (in particular the letter from Mr Bashar) and the country information leads the Tribunal to find that the letters are fraudulent and to place little weight upon them. 14 Ms Hillary submits there was no error in the findings and reasoning of the Tribunal at paragraph 19. She submits that the Tribunal clearly had discussed with the applicant the significance it intended to place on country information referring to the ready availability of fraudulent documents in Bangladesh and had given the applicant an opportunity to respond. Ms Hillary drew attention to paragraph 24 of the conclusions of the Judge at first instance in the Federal Circuit Court of Australia, in which his Honour, Judge Driver said: Further, the Tribunal set out in its decision record the documents proffered at different stages in the review process in support of his application. The weight attributed to these corroborating documents was a matter for the Tribunal only. Particularly, the findings made by the Tribunal at [19] and [36] that some of the documents proffered by the applicant were fraudulent, was open to the Tribunal to make on the country information before it.

Consideration 15 Country information that fraudulent documents were readily available in Bangladesh was not the sole basis upon which the Tribunal reached its conclusion that the particular documents submitted by the applicant were fraudulent. This is self-evident from the terms of paragraph 19 of the Tribunal's reasons. The internal inconsistency within those documents was also a matter that the Tribunal took into account. 16 Findings of the kind which are proposed to be attacked under ground 1, if leave were granted, subject to identified jurisdictional error, were exclusively within the remit of the Tribunal. The applicant did not identify any such error and nothing in the reasoning process in addressing the applicant relied upon (set out in detail at [23] below) is indicative of a failure by the Tribunal going to its jurisdiction that would attract judicial review. The applicant has entirely failed to persuade the Court of any doubt regarding the correctness of the judgment below in respect of the issue he would seek to agitate on appeal were leave granted to permit him to rely on proposed ground 1.

Proposed Ground 2 17 Proposed ground 2 is that the applicant was not provided an opportunity to comment on the materials which the Tribunal relied on its decision.

Consideration 18 Self-evidently, that is not the fact with respect to the matters that were referred to in paragraph 19 of the Tribunal's reasons. And to the extent that the ground raises the prospect that some other matters were not referred to the applicant for comment, none were identified or particularised by the applicant as having occurred. 19 Moreover, I accept Ms Hillary's submission that the Tribunal's critical finding that the applicant was without credit was based essentially on inconsistencies in the applicant's own evidence. It is clear that the Tribunal put its doubts as to the credibility of those accounts to the applicant - indeed the applicant took the occasion to provide further written submissions in response. To illustrate this I have set out paragraphs 21 - 26 of the Tribunal's reasons below: 21. However, the applicant's account at the hearing of what happened in the tea shop was significantly different. He stated that in October 2012 he was sitting in a tea shop with friends when Awami League members entered the tea shop. The applicant was having a cup of tea with an Awami League activist named Mohamed Younus when Mt Younus became angry and poured hot water from a kettle over the applicant's back. This account differs in relation to when the event occurred, whether the applicant was already in the tea shop when he was approached by Awami League members, whether Mr Younus was himself present or whether he was just the topic of conversation and whether the applicant was injured or not. The applicant provided photographs of the claimed injuries. These do not show that he was in a tea shop or the circumstances in which the injuries were sustained and therefore the Tribunal places little weight upon them in support of the applicant's claims. The Tribunal considers that if such injuries had been sustained in the manner claimed by the applicant at the hearing then the applicant would not state in his written claims that the Awami League members just told him to think it over and then let him leave. The Tribunal is not satisfied that the applicant was approached or attacked in a tea shop in 2012 by Awami League members. 22. Following the hearing the applicant provided a written submission in which he claimed that he was referring to two separate events and that his written submission was only referring to an offer to join them in May 2012. The Tribunal does not accept that this explains the differing accounts of what happened in the tea shop. Furthermore, when the inconsistency was discussed with the applicant at the hearing he did not claim that they were two separate events but instead referred to the photographs as evidence that he was injured. 25. However at the Tribunal hearing he stated that other than the incident in the tea shop he had never been assaulted in any way that was remarkable or mentionable. He stated that he had never needed medical assistance. When the Tribunal put to him that he had referred in his statement to stones being thrown at him he stated that there was a brawl where they threw some stones but he did not go to the doctor and just went to the pharmacy to get savlon cream. When the Tribunal put to him that his written claims suggested a serious assault which took him two weeks to recover he stated that he just rested indoors. When asked if it was reported to the police he stated, inconsistently with his written claims, that it was not reported because it would not bring any positive outcome. 26. In his written submission provided after the hearing the applicant claimed that there were too many incidents to remember and he was not so badly injured that he had to be admitted to hospital and was feeling better after using the antiseptic medicine. The Tribunal did not find this explanation persuasive. The applicant's written claims clearly suggest a serious incident, requiring two weeks recovery. The Tribunal does not accept that this is consistent with a minor incident where the applicant felt better after applying antiseptic cream. 20 It was as a result of those inconsistencies and others that the Tribunal reached the conclusion it set out at paragraph 27 of its reasons: 27. The Tribunal found the applicant's account at the hearing and in his written statement to be so inconsistent that it is not satisfied that the applicant was attacked with stones by Awami League members. 21 With respect to the letters and other documents the applicant provided, the Tribunal not only alerted the applicant to country information regarding the ready availability of fraudulent documents but also questioned him in relation to its scepticism of their content. The Tribunal did so, not only with respect to the letters referred to at paragraph 19 of its reasons, but also the documents the applicant tendered in order to support his case that he had been subject to false charges. In this regard I set out paragraphs 33 - 36 of the Tribunal's reasons below: 33. Furthermore, the charge sheet which the applicant provided at the hearing states that the applicant was charged on 6 February 2012. This is nine months before the applicant arrived in Australia in November 2012. This is inconsistent with the applicant's claim that charges were laid against him after his arrival in Australia. The applicant's claim that the police first filed a case against him after his arrival in Australia is inconsistent with the letter of support provided by Md Sarif Hossain who states that the applicant has several cases against him but he managed to escape to Australia. When this was discussed with the applicant at the hearing he stated that he spoke to his BNP colleague after arriving in Australia and then provided the letter to the Department. He did not give any explanation for the content of the letter. 34. Also the Tribunal considers that if charges had been laid against the applicant in February 2012 and the applicant was still living at his home address until he came to Australia in November 2012 (as he stated both at the hearing and in his application form) then the applicant would have been made aware of the charges before he came to Australia. The applicant claimed that the charges were filed a long time ago but his name was added after he came to Australia. This is not consistent with the charge sheet which he has provided which lists him as an accused and is dated February 2012. Also the charge sheet lists the applicant as having absconded. There appears to be no basis for this given that the applicant was living at his home address between the time of the First Information Report on 13 August 2011 and the date on the charge sheet, 6 February 2012. 35. Finally, the applicant appeared to have little knowledge about the charges that had been laid against him. He claimed that this was because they were false charges. Nevertheless, they are serious charges with very serious consequences for the applicant and the Tribunal would expect him to have examined them carefully to find out exactly what he has been accused of. At the hearing he was asked what the charges were against him and he stated that he was charged with damage of a motor vehicle and protesting without written consent. When asked if there were any other accusations he stated that he can only remember those two. However the charge sheet does not refer to any damage of motor vehicles but rather to the applicant (and others) and having assaulted and seriously injured other persons, including police officers. It appears to the Tribunal that these are far more serious accusations than having damaged a motor vehicle and that the applicant would be aware of them if he had been charged as he claims. 36. … the charge sheet itself also contains some anomalies. For example it lists the accused up to number 9 but then skips to number 14. This, together with the above concerns, the late provision of the charge sheet and the country information about the prevalence of forged and fraudulent documents in Bangladesh, leads the Tribunal to find that the charge sheet is not a genuine document. The Tribunal therefore places no weight on it in support of the applicant's claims and considers that its provision to the Tribunal reflects poorly on the applicant's credibility. 22 As Ms Hillary submits, there is no reason to doubt the analysis of the judge at first instance that it was open to the Tribunal to find the applicant was not a credible witness and, as a result of that finding, to have wholly rejected the factual basis of his claims. The applicant did not attempt to identify any specific adverse matter that had not been put to him in order that he might respond to it in respect of which the Tribunal had breached its duty. I accept Ms Hillary's submission that, on the face of the materials before the Federal Circuit Court of Australia, nothing enlivened the Tribunal's obligations under s 424A of the Migration Act 1958 (Cth). 23 The applicant therefore fails to persuade the Court that there is doubt regarding the correctness of the judgment of the court below in respect of the issue he would seek to agitate on appeal, were leave granted to permit him to rely on proposed ground 2.

Proposed grounds 3 and 4 24 Proposed grounds 3 and 4 are reproduced from the applicant's draft notice of appeal as follows: (3) The appellant was implicated a false cases which compelled the applicant to leave the country. The tribunal considered into negative sense which raised question to accord procedural fairness. (4) The Federal Circuit Court made error of law by not finding that the Second Respondent made jurisdictional error by not considering the integer of the applicant's claim. Particularly, a false case was filed against the applicant prior to his leaving the country of origin. 25 Proposed grounds 3 and 4 can conveniently be grouped together. Ms Hillary submitted that they were two faces of the same coin. I accept that to be so. Were leave granted they would each enable the applicant to attack the asserted failure of the Tribunal to consider a claim that he had been the subject of a false accusation, that those false charges had been laid against him and that the accusations and charges had been the result of his political activities.

Discussion 26 The reasoning of the Tribunal at paragraphs 33 - 36, as set out earlier in these reasons, led the Tribunal to the conclusion it recorded at paragraph 18 that the inconsistencies in the applicant's evidence were: …so numerous and significant that they lead the Tribunal to find that the applicant is not a credible witness. The Tribunal does not accept that he was a Joint Secretary in the BNP, that he was involved in organising protests and hartals, that he was assaulted or threatened by Awami League members, that he was forced to go into hiding in Bangladesh or that he has had false charges laid against him. 27 In the light of those express findings it would be manifestly untenable for this Court to permit the applicant leave to appeal in reliance upon a proposition that the primary judge had fallen into error by failing to find that the Tribunal had not considered that specific integer of the applicant's claim. 28 The residue of what would remain of proposed grounds 3 and 4 shorn of that proposition is merely the applicant's reassertion of his truthfulness and a complaint that the Tribunal should have made a different decision. Neither the Federal Circuit Court of Australia nor this Court, were leave granted, can exercise merits review. It is plain from the Tribunal's decision and from the decision of the Federal Circuit Court of Australia, that serious adverse credibility findings were available to made on logically probative grounds. Accordingly, the prospects of an appeal being successful on the proposed grounds are vanishingly slight. 29 The applicant therefore fails to persuade the Court that there is doubt regarding the correctness of the judgment below in respect of the issue he would seek to agitate on appeal were leave granted to permit him to rely on proposed grounds 3 and 4.

Other submissions 30 In addition to the grounds set out in the proposed notice of appeal, the applicant was permitted to tender a statement in which he made additional submissions. A number of those submissions went to difficulties the applicant had faced and continues to face in that he has been unable to afford legal representation. The applicant said that his income was low and he had been unable to finish his study and, as a result, had not been able to find a good job. Those are matters for which the Court might have personal sympathy but they are not relevant to whether the applicant has any substantial prospects of success were he permitted to proceed with an appeal. 31 The applicant also told the Court that there was a genuine risk to his life which it should bear in mind. But the applicant has not identified for this Court any jurisdictional error in the original decision of the Tribunal or any error in the manner in which the Federal Circuit Court dealt with the matter in dismissing his application for review under rule 44.12(1)(a) of the FCCR.

Conclusion 32 In the above circumstances, given the wholly insufficient prospects of success of any of the proposed grounds of appeal together with the 8 month delay between the decision of the Federal Circuit Court of Australia and the instigation of proceedings in this Court it would be an improper exercise of discretion to grant the application made. There is nothing before the Court to suggest that the decision below, that is, the decision of the Federal Circuit Court of Australia, is attended with sufficient doubt to warrant its reconsideration by an appellate court. 33 Furthermore, the Court has not been persuaded that substantial injustice would result if leave is refused, supposing the decision of the Federal Circuit Court of Australia to be wrong (Décor Corporation) because, notwithstanding the grave consequences asserted, in the circumstances specific to this matter, there is not even a faintly arguable basis to make the assumption that the primary judge's decision was wrong. The assumption would require an entirely insupportable view of the merits of the proposed appeal grounds. 34 In these circumstances, the application for an extension of time within which to seek leave to appeal should be refused (see Patel v Minister for Immigration and Border Protection [2014] FCA 823 at [30] per Robertson J). 35 I refuse the application for an extension of time in which to seek leave to appeal and order that the applicant pay the first respondent's costs as agreed or taxed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.

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