SZUHQ v Minister for Immigration and Border Protection

Buchanan J: 1 The appellant is a Bangladeshi businessman who was, he claimed, the owner of a business in a market in Dhaka until October 2011. In that month he travelled to Australia and entered Australia on 20 October 2011. On 18 November 2011, he made an application for a protection visa. 2 On 27 August 2012, the application for a protection visa was refused by a delegate of the Minister. The appellant applied to the Refugee Review Tribunal ("the RRT") for review of the delegate's decision. On 10 April 2014, the RRT affirmed the delegate's decision. Of very substantial importance in the reasoning of the RRT was its conclusion that the appellant was not a credible witness and that he had given untrue evidence. Those findings, and the claims of the appellant which the RRT rejected as a result, appear from the following passages in the RRT decision: 31. The Tribunal accepts that the applicant is who he claims to be, that he is Muslim and that he is a citizen of Bangladesh; his passport issued in his country [in] 2010 was produced to the Tribunal at the hearing and a copy is on the applicant's Tribunal file. The Tribunal finds that the applicant's passport has been altered as reported in the document examination report dated [in] November 2013 which was obtained by the Tribunal. Based on that report the Tribunal finds that there is no evidence of alteration to the personal data in the applicant's passport including the photograph. There is no evidence before the Tribunal as to why or when the applicant's passport was altered. 32. The Tribunal finds that the applicant is not a credible witness and that he has given untrue evidence of his claims for protection. 33. The Tribunal does not accept as true that the applicant did not know his passport was altered. The Tribunal informed the applicant at the second Tribunal hearing of the results of the document examination report obtained by the Tribunal; it explained that the results caused the Tribunal to have concerns about his credibility and offered him the opportunity to comment or respond to that information. The applicant told the Tribunal that he got the passport through a broker and he had no idea the passport was altered as he did not see or look inside it; he only saw the photo page. The Tribunal does not accept that this is true. The Tribunal does not accept that this is a reasonable or plausible explanation given that the passport is dated as issued [in] 2010 and has been in the applicant's possession for some time and has been used by him to leave his country and enter Australia according to the stamps in the passport. 34. The Tribunal finds that the applicant worked in his country in his [business] right up until the time he left his country to come to Australia and in the Tribunal's view this is not consistent with the applicant's claims that he was persecuted in his country and will be persecuted on his return there. It is not consistent with his claims about why he left his country and why he cannot return there. The applicant told the Tribunal that he was in hiding moving around from place to place in Dhaka to avoid harm and that his business closed before he left Bangladesh but he also said that his [business] was operating in Dhaka until two to three months before he left Bangladesh. In his application for visa at Question 40 on Form C he states that he was employed in his business from March 2007 until October 2011 when he left to travel to Australia. When the Tribunal queried how his business was running if he was in hiding in the places he claimed, from 2008, he said variously that his manager looked after the business and he contacted his manager mainly over the telephone, that he did not go there to his business after 2008 when Awami League supporters/gangs with the support of the Awami League started harassing him for money at the business, that he saw his manager at home sometimes and that he was last at the business in June 2011 when there were demands for more money and threats made to close the business. When the Tribunal queried his evidence that he was not at his business from 2008 until June 2011 he then said that he had a storage room and goods at another market in Dhaka where goods were prepared for sale and he went there once a week secretly. The Tribunal considers that the applicant changed and embellished his evidence to answer the Tribunal's concerns about it. The Tribunal finds that the applicant worked in his country in his [business] until October 2011 when he left his country to come to Australia. 35. The Tribunal does not accept as true that the applicant was in hiding at any time in Bangladesh as he claims for the reasons that he claims, including because he was being harassed for money by Awami League supporters/gangs with the support of the Awami League. In the Tribunal's view it is not consistent with the applicant's claims that he was in hiding in various places which he named around Dhaka, from 2008, that once a month, or once each two months, he visited his family in his local area in Munshiganj, by bus or auto rickshaw as he told the Tribunal. When the Tribunal queried how he managed to make those visits if he was in hiding he said that he did so secretly, that he saw his family at night only between 11pm and 5 am and he told them he was coming and they waited for him. The Tribunal does not accept as true that the applicant was travelling to his local area secretly from Dhaka to see his family as he claims. 36. Nor in the Tribunal's view is it consistent with the applicant's claims that he is of such interest to the Awami League and its supporters/activists in Bangladesh that he had to go into hiding to avoid harm there from 2008 that he was able to get his visa for Australia in September 2011 and exit his country using a passport/visa in his name issued by the authorities in his country. When the Tribunal asked the applicant about one of the documents he produced in support of his claims which is described as a warrant he said that one warrant issued in 2009 and the others were issued in 2011. He said that police came to his home but could not find him there as he was in hiding. When the Tribunal queried with the applicant how then he managed to leave his country with his passport and visa if authorities were interested in him to the extent that he claims, the applicant did not give the Tribunal a reasonable or plausible explanation. He stated variously that he had no trouble leaving Bangladesh as he was taken to the airport secretly, he had to sit in a seat near a particular gate, his passport was stamped when he left and he had no difficulties leaving because the people from his Party arranged it all. The Tribunal does not accept that the applicant's explanation is true. 37. Not without some doubt about the matter the Tribunal accepts that the applicant is a BNP supporter. The Tribunal does not accept however that the applicant has held the positions in the BNP in Bangladesh that he claims to have held; in the Tribunal's view his very general description at the hearing of the BNP activities he was involved in when he held those positions does not indicate that he had the profile that he claims to have as a BNP member in his country. He also told the Tribunal that although he gave financial support to the BNP he essentially stopped his activities with the BNP in December 2008 because he was in hiding and could not give his time to politics after the 2008 election; he could have been abducted or killed and he was advised by his Party not to get caught in the crossfire. He also said however that a couple of months before he came to Australia he joined the "long march", a public event when there was a problem between India and Bangladesh and he attended a conference in Dhaka with the leader from his locality about one month before he came to Australia. When the Tribunal asked him how he managed to be involved with the march and the conference in the months before he came to Australia given that he was in hiding at that time he said that he could do so as there were many people there at those gatherings. The Tribunal does not accept as true that the applicant was in hiding in his country at any time or that authorities in his country were interested in him as he claims for the reasons that he claims. 38. The Tribunal accepts that the applicant has attended some BNP meetings/activities in Australia; he told the Tribunal that he went to a BNP meeting in December 2011 after coming to Australia, that he is gradually getting known and has been nominated for a post in a committee to be formed. He said that he has attended meetings and that there is a demonstration [next] Monday. He gave the Tribunal photographs of his attendances at the BNP meetings/activities in Australia. To the extent that the applicant makes the claim the Tribunal does not accept that the applicant fears harm in his country because of his attendances at BNP meetings/activities in Australia or that there is a real chance he will suffer harm amounting to serious harm, or a real risk he will suffer significant harm, in his country because of his attendance at BNP meetings/activities in Australia. 39. Given the concerns that the Tribunal has about the applicant's credibility the Tribunal does not accept as true that the applicant's family [have] had, or are having, difficulties in Bangladesh because of the applicant's situation to the extent that the applicant makes this claim. The Tribunal accepts that the applicant's wife has moved to stay with a relative since the applicant left his country as the applicant stated but the applicant told the Tribunal also that his wife and [child] go to the family home sometimes to see his (the applicant's) mother who is sick, that his [child] is attending school in the local area although it is troublesome for his wife to take [the child] to school and that his (the applicant's) brothers are living in the family home with a servant to look after his mother. 40. The Tribunal considered the documents, including the copies of newspaper articles and entries, that the applicant produced to the Tribunal in support of his claims. Given the Tribunal's concerns about the applicant's credibility, and the fact that he produced an altered Bangladeshi passport to the Tribunal and the Department and also 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 are not reliable evidence of the facts in them. 41. The Tribunal finds that the applicant has not given credible evidence about his claims. The Tribunal does not accept as true that the applicant left his country in October 2011 to come to Australia, and cannot return there, because he feared/fears harm in Bangladesh for the reasons that he claims. The Tribunal does not accept as true that the applicant was/will be targeted for harm by authorities, the police, Awami League members/supporters/activists or gangs supported by the Awami League because of his BNP membership/activities in Bangladesh or that as a businessman/businessman with BNP connections he faced and/or will face harm from extortion from Awami League activists/gangs in Bangladesh. Further the Tribunal does not accept as true that the applicant has been attacked in the past and/or that false cases were filed against him and/or that there were/are warrants for his arrest outstanding in Bangladesh. The Tribunal does not accept that the applicant was targeted for harm by those he claims for the reasons that he claims in Bangladesh or that there is a real chance he will suffer harm amounting to serious harm, or a real risk he will suffer significant harm, in his country for the reasons that he claims if he returns there. 42. 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/activists, gangs supported by the Awami League, authorities, 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. 43. Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in Bangladesh within the meaning of the Convention. 44. Further in the Tribunal's view there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this applicant's case, Bangladesh, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) ('the complementary protection criterion'). [Taken from the version published by the RRT in accordance with s 431(2) of the Migration Act 1958 (Cth) ([2014] RRTA 256)]. 3 I have set out those passages at some length to illustrate the merit-based nature of the conclusions reached by the RRT which, as may be seen, comprehensively rejected the asserted factual foundation upon which the appellant based his claim for a protection visa. 4 Assessment of the merits of a claim to a protection visa is a matter assigned by statute to the RRT if the decision of the Minister (or a delegate) on that question is not accepted. There is limited scope to challenge such findings in the courts. However, the Federal Circuit Court of Australia ("the FCCA") has jurisdiction to hear an application for judicial review of a decision of the RRT if that application raises questions of jurisdictional error. On 7 May 2014, the appellant made an application to the FCCA for judicial review of the decision of the RRT, which had been made on 10 April 2014. In a judgment given on 5 March 2015, the FCCA rejected that application (SZUHQ v Minister for Immigration & Anor [2015] FCCA 395). 5 The appellant has now appealed to this Court. There are two grounds of appeal which were stated as follows: 1. Hon. Judge Lloyd - Jones of the Federal Circuit Court failed to hold that Refugee Review Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36 (2) (aa) of the Migration Act . The RRT failed tot separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection . RRT decision is unreasonable with regards to Complementary Provision . 2. The Tribunal.s assessment of the credit the fact about the Applicant's passport is biased and misunderstood . The appellant is a truthful witness and affirmed that his passport is genuine and made by the Bangladesh Passport authentically and legally . He always denied that he altered inside the Passport . He said that he deed not see in side of the passport. The appellant claims that the Tribunal formed the preoccupied view or opinion about the Applicant's document and oral evidence . The appellant claims that he was denied natural justice and procedural fairness when the Tribunal in making decision it ignored the oral evidence of the applicant Whatever he said was true . 6 The first ground of appeal to this Court relates to the conclusions of the RRT which were stated in [44] of its decision (which I set out above). The second ground of appeal to this Court challenges the conclusions of the RRT that the appellant was untruthful. These grounds depart somewhat from the way in which the appellant argued his case before the FCCA and it is, therefore, to that case that attention must first be given. 7 The grounds of the application for judicial review which were put to the FCCA were as follows: 1. The Tribunal found at paragraph 38 of its decision that, although the applicant was active with the BNP in Australia, he did not face a real risk of harm in Bangladesh because of his attendance at BNP meetings and activities in Australia. The Tribunal did not put this issue to the applicant and give him an opportunity to comment. This was a denial of procedural fairness or a breach of s 425 of the Migration Act 1958 (Cth). 2. The Tribunal took irrelevant consideration in deciding this claim, particularly regarding the applicant's passport issues and the tribunal unreasonably doubted to find a fault in the applicant's passport which is not justifiable. 3. The Tribunal made an error not considering the complementary protection issues, where the applicant had strong grounds to meet this issue. The applicant was denied in attaining natural justice. 8 The matters which the FCCA was asked to consider in support of those grounds were summarised by the FCCA as follows: 21. The applicant confirmed at the hearing he had not prepared any written submissions. In oral submissions, the applicant stated the situation in Bangladesh is still dangerous, there is a lot of political unrest, people associated with the BNP are being killed in Bangladesh and there are many people in gaol in Bangladesh. He also stated he and his family are associated with the BNP and there have been attempts on his life. He indicated he will return when it becomes safer in Bangladesh. 22. The applicant also stated the passport noted in the Decision Record belongs to him and he is unaware of what happened to it, but would accept any punishment. 9 As to Ground 1, the FCCA found: 29. Ground 1 of the application raises a claim in respect of the applicant's involvement with BNP activities in Australia. Specifically, the applicant claims he was denied procedural fairness in this respect because the Tribunal found there was not a real chance or real risk the applicant would suffer harm as a result of these activities, but did not give the applicant any opportunity to comment on these issues. The applicant did not elaborate on this ground in any further detail. … 33. Having regard to the Decision Record, it is clear in the Tribunal's reasons the applicant's conduct in Australia was not dispositive of his application before it). The Tribunal instead did not accept the remainder of the applicant's claims in respect of his subjective fear of harm in Bangladesh on the basis of adverse credibility findings it made in respect of him. No issue turned on the applicant's BNP related activities in Australia (see Decision Record at [39]-[42] (CB 516-517)). 10 As to Ground 2 (which broadly corresponds with Ground 2 of the present appeal), the FCCA said: 40. This ground alleges the Tribunal took into account irrelevant considerations when dealing with the applicant's claim, particularly in respect of its findings relating to the applicant's passport. Relevantly, the Tribunal found the passport had been altered, put this to the applicant for comment, but did not accept the applicant did not know his passport had been altered (see Decision Record at [33]). Ultimately, this finding, in conjunction with other findings, was the basis for the Tribunal's broader finding that the applicant was not a credible witness. … 42. … as stated by his Honour McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] a finding on credibility is the function of the primary decision-maker par excellence, in this case the Tribunal. The Tribunal gave its reasons for its credibility findings in respect of the applicant and, on a fair reading, these were open to it on the material before it. This aspect of the ground cannot be sustained. (Emphasis in original.) 11 As to Ground 3 (which broadly corresponds with Ground 1 of the present appeal), the FCCA said: 45. Ground 3 of the application alleges a failure on the part of the Tribunal to consider the applicant's claims under s.36(2)(aa) of the Migration Act, known as the complementary protection criterion. The applicant has not addressed this issue in any further detail. 12 The FCCA then referred to [42] to [44] of the decision of the RRT (set out above) and then concluded: 46. … On a fair reading, the Tribunal, having thoroughly rejected the applicant's persecution claims, considered them against the complementary protection criterion, using the correct test, however found there were no substantial grounds for believing the applicant had a real risk of suffering significant harm. Accordingly, there is no error in the Tribunal's consideration of the complementary protection criterion and this ground should be dismissed. 13 An appeal to this Court does not represent an opportunity to canvass the merit of any decision about whether a visa applicant should be granted the visa applied for. The appeal is given for the purpose of correcting error by the FCCA. That may, in turn, require consideration of whether the RRT fell into some form of jurisdictional error, but consideration of that issue does not involve this Court attempting to repeat or simply redo the task of the FCCA (see AAM15 v Minister for Immigration and Border Protection [2015] FCA 804 at [14]). 14 In the proceedings in this Court, the only reference made by the appellant to the proceeding in the FCCA (apart from Ground 1 of the present appeal) was a statement at the beginning of short oral remarks that he "did not get due justice" in the court below. Otherwise, the effect of those remarks was directed to the contention that the appellant faced persecution if he returned to Bangladesh. 15 For the purpose of the present appeal the appellant also filed written submissions which he said were compiled with the assistance of a "friend". Those submissions contain a mixture of factual assertion and broadly stated legal contentions. 16 An example of factual assertions concerns the appellant's claimed association with the Bangladesh Nationalist Party ("BNP") which he said placed him in danger from supporters of the Awami League: 2. … The Tribunal wanted to know the history of his affiliation with the BNP party. As a truthfull witness the appellant explained everything about his involvement by giving oral and written evidence. 3. The appellant categorically and truthfully said to the Tribunal that in the early stage he was simply a member but after some stage he did sincere efforts to build up the organisation of BNP in his area . He became target of opposition Awami League Party because of his loyality and sincerity to BNP and sincere services to the local community. … 17 Assertions of this kind might, in an appropriate case, draw attention to some feature of a decision of the RRT which is then challenged for jurisdictional error, but the present appeal does not involve any independent review of the RRT's factual findings, its conclusions about the credit or truthfulness of the appellant or the merits of his application for a protection visa. 18 Examples of broadly stated legal contentions are: 6. In the submission to the Tribunal the appellant submitted that the applicant fears persecution because of having the membership of a particular social group .the appellant can be considered a member of a particular social group, namely a member of the BNP. The appellant claims that he was denied procedural fairness and natural justice when his submission was out right discarded or rejected. . Inconsistency is very common during hearings but the role of authority is vital to understand the issues . It can be done only open mind. The appellant claims that the Delegate and the Tribunal made decision with closed mind. … 10 The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958 The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm. 11 The Appellant has a legitimate expectation from the Tribunal that it would assess the appellant's claim according to required procedural fairness. 12 The appellant left Bangladesh because of fear from the Government Authority governed by the Awami League party (AL) . The appellant believes that there is a real risk that would suffer significant harm on return Bangladesh. 19 Allegations of bias and prejudgment of this kind are no doubt intended to raise legal (and jurisdictional) challenges to overcome the fact that the courts cannot deal with the merits of visa applications. However, considerably more is required than a mere accusation or assertion of bias (in this case, actual bias). As Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, allegations of prejudgment by being invincibly committed to a predetermined course of action "would have … to be distinctly made and clearly proved" (at [66]-[69]). 20 Similarly, allegations of jurisdictional error or of apprehended bias or of any other denial of procedural fairness or that a statutory condition has in fact been established, require more than mere assertion to make them good. 21 I can see no error in the analysis by the FCCA about the matters raised in the application to that court for judicial review. I can see no basis either in the restatement of the appellant's position in the grounds of appeal or the submissions in this Court upon which to conclude that the RRT made a jurisdictional error. In particular, I do not accept that the RRT misunderstood or failed to address the claim for a protection visa upon "complementary protection" grounds or that it failed to apply the correct test in relation to that issue. So far as questions of the appellant's credit are concerned, as the FCCA observed, the question of the assessment of the credit of the appellant is one of the aspects of an assessment of the merits of a claim for a protection visa. Those are matters consigned to the RRT rather than to the courts. No jurisdictional error has been identified, or appears to me, from this aspect of the RRT's decision. 22 None of the assertions about jurisdictional error appear to me to rise above that level of generalised, but unsupported, allegation. As the submissions for the Minister pointed out, the central difficulty for the appellant is that he, and his main claims, were disbelieved by the RRT. It is no answer to such a difficulty to claim that the appellant should have been believed because what he said was true. 23 As no error has been identified in the decision of the FCCA, and no jurisdictional error by the RRT has been established, it follows that the appeal to this Court must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.