SZUXR v Minister for Immigration and Border Protection

Federal Court of Australia|2017-07-07|Before: Mr J, O'Callaghan J

The appeal be dismissed.
The appellant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing the appellant's judicial review application.

Background 2 The appellant is a citizen of Bangladesh who first arrived in Australia on a student visa on 9 October 2009 before returning to Bangladesh for several months between November 2010 and January 2011 and February and April 2012. On 8 August 2013, the appellant applied for a Protection (Class XA) visa, which was refused by the delegate on 23 January 2014. The appellant variously claims that he fears harm in Bangladesh due to his medical condition, his and his wife's families and his involvement in the Bangladesh Nationalist Party (BNP). In his visa application he also claimed to fear being ostracised by his family for not having completed his studies in Australia. 3 On 28 January 2014, the appellant sought review of the delegate's decision and on 17 July 2014 that decision was affirmed by the Administrative Appeals Tribunal (the Tribunal). The FCCA dismissed an application for judicial review of the Tribunal's decision on 3 February 2017.

The Tribunal proceeding 4 The Tribunal considered whether the appellant met the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), on the basis of being a refugee, or the criteria in s 36(2)(aa), on the basis of there being substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia, there is a real risk that he would suffer significant harm. 5 The appellant claimed to meet both sets of criteria on the basis that: (1) His involvement with the BNP made him a target of the rival and ruling party, the Awami League. He claimed to have been involved in the BNP since 2007 and that he had continued to be involved since arriving in Australia. He also claimed to have been attacked by Awami League supporters in 2008, which led to his hospitalisation. (2) He had suffered temporary loss of eyesight as a result of a medical condition, presumed to be tuberculosis. He claimed that having had tuberculosis placed him at risk of being ostracised by his family and community. He also claimed that he would not have access to the same level of treatment in Bangladesh as he had been receiving in Australia. (3) His wife's family disapproved of their marriage and he feared that they would harm him as a result. 6 Dismissing his application for review, the Tribunal rejected all of the appellant's evidence with respect to his alleged political activity and his wife and her family, finding that the appellant was not a credible witness. Specifically, the Tribunal held, that, with respect to the appellant's claims concerning his alleged political activity: (1) this claim had not been made in his visa application form: Tribunal's reasons at [13]; (2) his knowledge of the BNP was "almost non-existent" and "not at the level the Tribunal would expect of a person who has been involved for approximately five years": Tribunal's reasons at [14]-[16]; (3) his evidence on the political activities in which he participated was "inconsistent and unpersuasive": Tribunal's reasons at [17]-[19]; (4) his evidence that he had been assaulted by Awami League supporters was unpersuasive, particularly in light of his failure to mention this incident on his application form: Tribunal's reasons at [20]-[21]; (5) his claim to fear harm in Bangladesh for political reasons was inconsistent with his decision to voluntarily return to the country for months at a time in 2010 and 2012: Tribunal's reasons at [23]-[24]; (6) despite claiming to have been attacked for political reasons in 2008 and arriving in Australia in 2009, the appellant did not lodge his protection visa application until 2013 and the Tribunal found his explanation for the delay to be unpersuasive: Tribunal's reasons at [25]; (7) his evidence concerning his alleged involvement in BNP activities since arriving in Australia was unpersuasive: Tribunal's reasons at [27]. 7 With respect to the appellant's claims concerning his wife and her family: (1) his application form made no reference to being married, to receiving threats in relation to his marriage or fearing returning to Bangladesh for this reason: Tribunal's reasons at [30]; (2) his evidence was inconsistent with respect to when he got married and unpersuasive with respect to where the couple lived after the marriage: Tribunal's reasons at [32]-[33]; (3) his evidence about the threat allegedly posed to him by his wife's family was unpersuasive and inconsistent: Tribunal's reasons at [34]-[35]; (4) his claim to fear harm in Bangladesh for family reasons was inconsistent with his decision to voluntarily return to the country in 2010 and 2012: Tribunal's reasons at [36]-[37]; (5) his evidence concerning harm suffered by his wife in Bangladesh was unpersuasive, inconsistent and not credible: Tribunal's reasons at [38]-[40]; (6) his evidence concerning threats made against him by his wife's family since he had been in Australia was inconsistent and unpersuasive: Tribunal's reasons at [41]. 8 With respect to the appellant's health, the appellant gave evidence at the hearing before the Tribunal that his vision was good and that he did not fear returning to Bangladesh due to difficulties with his vision or accessing medical care: Tribunal's reasons at [45]. He also resiled from his claim that he would be ostracised as a result of having had tuberculosis: Tribunal's reasons at [46]. On the basis of the Tribunal's adverse credibility findings and the appellant's abandonment of certain aspects of his claim, the Tribunal was not satisfied that the appellant met the criteria in s 36(2)(a) or (aa) of the Act. Although the issue was not raised before the Tribunal, the Tribunal was also not satisfied that the appellant had a genuine fear about returning to Bangladesh arising from his failure to complete his studies: Tribunal's reasons at [47].

The FCCA proceeding 9 The appellant sought judicial review of the Tribunal's decision in the FCCA, claiming - without particulars - that he had been denied procedural fairness before the Tribunal, including by reason of the Tribunal being biased, and that the Tribunal's decision was "unjust" and "made without taking into account the full gravity of the [appellant's] circumstances of the decision". Dismissing the application, the primary judge held that: (1) The Tribunal had discharged its procedural fairness obligations, including by putting to the appellant information required to be put to him by ss 424AA and 425 of the Act: citing the Tribunal's reasons at [16], [19], [23]-[25], [27], [30]-[33], [35] and [37]-[39]. The primary judge considered that the bias allegation was neither distinctly made nor clearly proved, as it was required to be, and accordingly struck out the claim as embarrassing. (2) The appellant's second ground reflected a disagreement with the Tribunal's findings on merit and disclosed no reviewable jurisdictional error.

The appeal to this Court 10 By Notice of Appeal filed 15 February 2017 the appellant claims in this Court that: The [Tribunal] failed to consider a claims or integer of claims and failed to consider whether [the appellant] had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived at in accordance with the provisions of [the Act]. The Tribunal denied [the appellant] procedural fairness by reaching conclusions that the [appellant] is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the [appellant] gad fear of persecution in his own country of residence. The [Tribunal] made findings without evidence. The [Tribunal] rejected the [appellant's] evidence before the Tribunal and failed to believe the [appellant] as a credible witness, such failure constituted a breach of s 425 of [the Act]. 11 The appellant did not file submissions in this Court, nor any other material in support of his appeal. At the hearing before me on 16 May 2017, he reiterated the grounds stated in his notice of appeal and further impugned the Tribunal's decision on the bases that the Tribunal's questioning of the appellant had deprived him of a fair hearing and that the Tribunal impermissibly had regard to certain country information in assessing his claims. The appellant also generally urged the Court to disturb the Tribunal's findings on the merits of his refugee claim. 12 The first respondent characterises the claims made in the notice of appeal as consisting of a claim with respect to the Tribunal's credibility findings, a "no evidence" claim and a procedural fairness claim. I agree with the first respondent's characterisation of the appellant's claims in the notice of appeal and with the first respondent's concession that the appellant's reference to the Tribunal's decision in the appellant's notice of appeal could be understood for the purposes of this appeal as alleging that the primary judge erred by failing to identify error on the Tribunal's part (that is, rather than seeking review of the Tribunal's decision in this Court). Even on that more generous understanding of the appellant's case, for the reasons that follow, the appeal should be dismissed.

The Tribunal's adverse credibility findings 13 Adverse credibility findings can expose jurisdictional error, for example, where they are illogical, irrational or unreasonable or where they have been arrived at in a manner that involved a denial procedural fairness: SZVAP and Another v Minister for Immigration and Border Protection & Anor (2015) 233 FCR 451 at [14]-[23]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38]. However, the Tribunal is not required uncritically to accept any and all allegations put to it by an applicant: see also Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2. 14 In this case, the Tribunal gave detailed and cogent reasons for its findings that the appellant's evidence was implausible and inconsistent (see [13]-[41]), having provided him with sufficient opportunity to address the Tribunal's concerns. Accordingly, I can see nothing in the Tribunal's reasons that exposes jurisdictional error of the kinds discussed in SZVAP and Another v Minister for Immigration and Border Protection & Anor (2015) 233 FCR 451 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146.

No evidence 15 The appellant's "no evidence" ground could only succeed if the appellant established that there was no evidence at all to support the Tribunal's findings: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. Even a "slight" evidentiary basis will defeat a "no evidence" challenge: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19]; WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]-[12]; and SZNKV v Minister for Immigration and Citizenship [2010] FCA 56; 118 ALD 232. However, finding a claim to be not made out for want of evidence is not the same as making a finding premised on no evidence. In the context of this proceeding, having found the appellant's evidence not to be credible, it was open to the Tribunal to disregard it and, in the absence of other evidence in support of the claim, to find that the criteria in s 36(2)(a) and (aa) were not satisfied. The Tribunal was not required to possess rebutting evidence before holding that a particular factual assertion was not made out: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [65]; citing Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; 34 ALD 347.

Procedural fairness 16 The appellant also claims that the Tribunal's adverse credibility findings constituted a denial of procedural fairness. For the reasons given at [13]-[14] above, no error is exposed by the Tribunal's adverse credibility findings in this instance. The appellant attended the hearing before the Tribunal and was given ample opportunity, with the assistance of an interpreter, to address the Tribunal's concerns with respect to his credibility: Tribunal's reasons at [13]-[40]. 17 To the extent that the appellant's notice of appeal otherwise claims, without particulars, that the Tribunal erred by not considering "each integer" of his claim or by failing to consider his claim in accordance with the Act, these claims are similarly premised on the misconception that it was not open to the Tribunal to reject the appellant's evidence on the basis of its assessment of his credibility.

Claims made at hearing 18 The appellant made two further claims at the hearing before me: first, that the Tribunal's questioning of him was "confusing" and "biased"; and secondly, that the country information relied upon by the Tribunal was inaccurate. 19 With respect to the appellant's claims that the Tribunal was biased and that its questioning was confusing, I accept the first respondent's submission that these claims must fail on the evidence. The appellant has not sought to put the transcript of the hearing before the Tribunal in evidence in this Court. Consequently, the only record before this Court of what transpired at the hearing is the Tribunal's reasons, which do not reflect any confusing line of questioning on the Tribunal's part. The reasons reflect, rather, that the answers provided by the appellant were directly responsive to questions asked by the Tribunal. For example: (1) When asked by the Tribunal what the appellant would tell someone who he was trying to convince to vote for the BNP, the appellant answered that he would tell them that the BNP leader was a very good, nice man, that he would develop the road and serve the constituent and that if he won the election it would be for the betterment of the constituency: Tribunal's reasons at [15]. (2) When asked about what he did in student politics he referred to doing various things for political purposes, including fighting. When asked if he was involved in any elections, he responded that he was involved in student elections in 2007, but not parliamentary elections. When asked why he was not involved in parliamentary elections, he responded that it was risky to be involved with national campaigns. Later in the hearing when asked further about his political activities, he responded that he went to people's houses on behalf of the local candidate in the 2007 national election: Tribunal's reasons at [18]. (3) When the Tribunal asked whether the appellant had been threatened, harmed, assaulted or detained in Bangladesh, he responded that he had been threatened by the Awami League. When the Tribunal later put to him inconsistencies in his evidence with respect to his alleged hospitalisation, he responded that he had volunteered to stay in hospital two extra days: Tribunal's reasons at [20]. (4) When asked why he returned to Bangladesh in 2010 and 2012, he responded that he had returned for love and because his mother required an operation: Tribunal's reasons at [23]. (5) When asked about the delay in lodging his protection visa application, the appellant responded that he was stressed and did not realise he could lodge such an application: Tribunal's reasons at [25]. 20 This pattern of questioning is reflected throughout the Tribunal's reason: see also at [27], [30]-[33], [35], [37]-[40] and [46]. If the appellant was confused by the Tribunal's questions, his answers, which were clear and relevant, certainly do not reflect that confusion. 21 The appellant's bias claim must similarly fail for want of evidence. As the first respondent submitted at the hearing before me, a claim of bias is a serious allegation that must be made good by way of evidence. There is no evidence before me to support such a claim. 22 With respect to the appellant's claim that the Tribunal inaptly relied on certain country information produced by the Department of Foreign Affairs and Trade and the Department of Immigration and Border Protection, this claim does not appear to have been made before the primary judge and the appellant would require leave to raise it now. Leave will be refused. This is not a case in which the appellant claims that the Tribunal erred by failing to have regard to the most recently available country information (as in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431). Rather, he merely claims that the information to which the Tribunal had regard was inaccurate, in circumstances where the only other information before the Tribunal was the appellant's own evidence. Having rejected the appellant's evidence, it was plainly open to the Tribunal to rely on the country information in question. 23 As the Full Court held in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]: There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that. 24 As a final matter, the appellant submitted orally that his claims met the refugee criteria in s 36(2)(a). This general submission goes squarely to the merits of the Tribunal's decision and does not point to an appellable error.

Conclusion 25 For the reasons given above, the appeal will be dismissed. The appellant should pay the first respondent's costs, to be agreed or assessed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

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