SZVTQ v Minister for Immigration and Border Protection

Federal Court of Australia|2016-08-09|Before: Collier J

The application for extension of time and leave to appeal filed 16 May 2016 be refused with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 This is an application for extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia dated 22 April 2016 in SZVTQ v Minister for Immigration & Anor [2016] FCCA 942. The primary Judge ordered, inter alia, that the applicant's amended application for judicial review of the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) be dismissed.

Background 2 The applicant arrived in Australia from Bangladesh in June 2012 by unauthorised maritime arrival. On 11 December 2012, the applicant applied for a protection visa on the basis that he feared returning to Bangladesh due to his membership of the Bangladesh National Party (BNP). The applicant claims that he ran a grocery shop in Bangladesh and gave products on credit. A fight occurred when a customer refused to pay and the customer was injured. The customer who was injured had connections with the rival political party, the Awami League (AL). After the incident, the applicant heard that a group of people were approaching his home. He was able to get out in time and went into hiding, where he was able to arrange a false passport so he could leave the country. Since he has been away, the injured customer's brother, a known criminal, and his friends have threatened the applicant's family and have asked for his whereabouts. The applicant also asserted that his grocery shop had been destroyed and that his house had been damaged. 3 The applicant claims that he fears being killed and "skinned" if he were to return to Bangladesh, and that the authorities would not protect him because the AL is in power. He further claimed that he would be targeted due to his involvement and support of the BNP. 4 On 11 February 2014 a delegate of the Minister refused the applicant's application for protection visa on the basis that the applicant did not satisfy the delegate that he was a person to whom Australia had protection obligations or complementary protection obligations.

Tribunal decision 5 In the Tribunal the applicant sought review of the decision of the delegate of the Minister. The applicant was represented by a registered migration agent at the Tribunal hearing, and an interpreter was present to assist him. 6 The Tribunal found that the applicant was not truthful in his claims about the extent of his involvement with the BNP and the attacks on himself, his shop and his home. Rather, the Tribunal found that, in summary: the applicant's explanation of his escape from his home while there were crowds of people nearby (but who did not see him) was implausible; the fact that he did not mention the destruction of his shop in the document which accompanied his application for the protection visa was indicative of his lack of candour; it made little sense that the applicant allegedly reported to the police the fact that the customer did not pay him, but did not report the incident concerning the destruction of his shop; the applicant was unable to explain why, given his claimed level of political involvement, there was no attempt to harm him before the alleged events involving the destruction of his shop and home; the lack of education and illiteracy of the applicant do not explain the discrepancies in his evidence; the apparent dispute between the applicant and his customer was a mere financial dispute over payment. This would be consistent with the fact that the applicant does not claim to have experienced any harm before the incident. 7 In all, the Tribunal was prepared to accept that the applicant had an argument with a customer, but does not accept that the argument arose because of, or was in any way affected by, politics. 8 It followed that the Tribunal did not accept that the applicant's business was destroyed or that his house was damaged. 9 In relation to the chance of future harm, the Tribunal noted that it had: … formed the view that the dispute between the applicant and his customer was purely financial and unrelated to any political affiliations. Given the relatively insignificant nature of the dispute and the fact that it occurred three years earlier, the Tribunal does not accept that the applicant will be of any adverse interest to any party in the future. Further, the Tribunal is of the view that the applicant will be able to access police protection. 10 The Tribunal did not accept that the applicant's claim that he had previously sought police protection and that it was denied because of his involvement with the BNP. 11 The Tribunal had regard to the applicant's conduct in Australia, and formed the view that evidence presented indicated participation in BNP social activities rather than political activities. Further, the Tribunal considered that that evidence was advanced to strengthen the applicant's case and should be disregarded in accordance with s 91R(3) of the Migration Act 1958 (Cth) (the Act). 12 Finally, the Tribunal was not satisfied that there was a "reasonable and necessarily and foreseeable consequence" that if the applicant were to return to Bangladesh, that there was a real risk he would be significantly harmed. The Tribunal also rejected the applicant's case on the basis that Australia did not owe protection obligations to him under s 36(2)(aa) of the Act.

Federal Circuit Court 13 The applicant applied to the Federal Circuit Court for review of the Tribunal's decision. In the Federal Circuit Court proceedings, the applicant was given the opportunity to file an amended application, affidavit and submissions. Only an outline of submissions was filed. The grounds of appeal in the Federal Circuit Court where the following: Ground One The Tribunal committed jurisdictional error when it denied the Applicant's application and breached procedural fairness, failing to determine that the Applicant was a BNP Activist in Bangladesh and persecuted by the present AL government elements therefor the Tribunal decision should be set aside according to the law. Particulars Tribunal stated (RRT3 decision, p 9 at [30-31] "...Are there any substantial ground for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia there is real risk that will suffer significant harm---?" Ground Two The Tribunal committed jurisdictional error when it failed to put the Applicant on notice that the issue that the did [sic] not find the applicant is not a high profile BNP leader but a BNP activist. Thereof [sic] the tribunal should remit the decision of the delegate as AL has killed thousands of low profile BNP activists like me (Rapid Action Battalion) Particulars The Tribunal whilst referred that the applicant did not meet the refugee criteria in s.36(2)(a) and alternative criteria s.36(2)(aa). In fact the applicant has met the criteria of section s.36(2)(a) or alternative criteria s.36(2)(aa) and qualified to have protection visa. 14 The matter was listed before the primary Judge for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules) - namely a determination whether the application has raised an arguable case for the relief claimed. The applicant appeared in person. 15 In relation to ground 1 of the application the primary Judge observed: 12. In relation to ground 1, it is apparent from the court book that the applicant was invited by letter dated 22 September 2014 to attend a hearing on 22 October 2014. The applicant attended on that date before the Tribunal to give evidence and present arguments, and was assisted by an interpreter as well as being represented by his registered migration agent. The structure of the Tribunal's reasons identifies the applicant's claims and an evaluation of the applicant's credit in relation to his claims. There is nothing on the face of the reasons of the Tribunal to disclose any arguable case that the Tribunal failed to comply with the statutory requirements or breached any obligation of procedural fairness. 13. On the face of the material before the Court, the applicant had a genuine hearing and it was a matter for the Tribunal to make credit findings in relation to the applicant's claims. Those adverse credit findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 1 fails to identify any arguable jurisdictional error. 16 In relation to ground 2 his Honour said: 14. In relation to ground 2, it is apparent from the structure of the Tribunal's reasons that the applicant's credit in relation to his claims was a live issue. There is no substance in the contention that the Tribunal was required to take some other step in relation to the assessment of the applicant's credit as to his claimed profile and involvement in BNP. 15. Ground 2 is, in substance, an impermissible challenge to the adverse findings by the Tribunal and fails to disclose any arguable case of jurisdictional error. 16. In relation to the applicant's submissions, the applicant contended that in making the decision the Refugee Review Tribunal acted without jurisdiction or in excess of its jurisdiction when it failed to take into account relevant considerations. 17. No relevant considerations which the Tribunal failed to take into account were identified by the applicant or in the applicant's submissions, and the particulars advanced in the outline of submissions were in substance an impermissible challenge to the adverse findings of fact made by the Tribunal. 18. There is nothing on the face of the Tribunal's reasons to support the contention that the Tribunal misunderstood the applicant's evidence. The assertion that the Tribunal acted without jurisdiction or in excess of jurisdiction fails to disclose any arguable case of jurisdictional error. 19. Insofar as the submissions refer to the adverse findings of credit by the Tribunal, those adverse findings were open and cannot be said to lack an evident and intelligible justification. 20. Insofar as the submissions suggest that the Tribunal asked unreasonable and irrelevant questions, there is no evidence to support that contention, and the structure of the Tribunal's reasons are consistent with the Tribunal properly discharged its statutory obligation. 21. Insofar as the submissions suggest the applicant was denied procedural fairness on the basis that the hearing was not conducted freely and fairly, there is no material to support that contention, and the structure and content of the Tribunal's reasons are inconsistent with that contention. 22. To the extent that it is suggested that the Tribunal made a jurisdictional error by failing to understand the applicant's difficulties and circumstances, there is no evidence before the Court to support any such failure by the Tribunal. To the extent that it is suggested that the Tribunal intentionally asked irrelevant questions to undermine and confuse the applicant, the passage quoted in the applicant's submissions identifies an analysis of the applicant's credit consistent by the Tribunal with its statutory obligations and does not support the contention of any irrelevant questions. 23. Insofar as the reference to intentional irrelevant questions was intended to advance an allegation of bias, such an allegation must be clearly alleged and properly proved. The adverse findings by the Tribunal in relation to the applicant's claims are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair and impartial mind to the determination of the matter on its merits. 24. To the extent that it is suggested that the Tribunal member unreasonably raised questions about the information given by the applicant in the first interview, there is nothing in the Tribunal's reasons to support the contention that it was unreasonable for the Tribunal to raise with the applicant the inconsistencies that were apparent from the material provided by the applicant on the first interview. 25. The raising by the Tribunal with the applicant of the information provided at the first interview is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial or independent mind to the determination of the matter on its merits. There was nothing unreasonable in the Tribunal raising with the applicant the inconsistencies in his evidence. 26. To the extent that the applicant's submission suggests he was denied procedural fairness, there is no substance, on the face of the Tribunal's reasons or the material in the court book, with that contention and I am satisfied that on the material before the Court the applicant had a genuine hearing. The suggestion that the Tribunal's reasons were confused or inconsistent is not supported by the content of the Tribunal's reasons. 27. The suggestion by the applicant that the Tribunal failed to apply the correct test in relation to complementary protection is lacking in substance and does not disclose any arguable jurisdictional error. The Tribunal identified in its reasons the principles relating to complementary protection in para.9, and its reasoning in paras.31 to 35 are consistent with the Tribunal applying the correct test in relation to complementary protection. Nothing in the applicant's outline of submissions or anything said by the applicant from the bar table identified any arguable jurisdictional error. 17 His Honour dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules on the basis that it did not raise an arguable case for the relief claimed.

Application to the Federal Court 18 The applicant filed an application for extension of time and leave to appeal from the orders and judgment of the Federal Circuit Court on 16 May 2016. Leave to appeal from the decision of the primary Judge is required because it was an interlocutory decision: s 24(1A) Federal Court of Australia Act 1976 (Cth). Further, the application for leave to appeal was not filed within 14 days of the primary Judge's decision as required under r 35.13(a) of the Federal Court Rules 2011 (Cth) (the Federal Court Rules). It is not disputed that, in order to proceed, the applicant requires an extension of time pursuant to r 35.14 of the Federal Court Rules. 19 In the application the applicant relied on the following grounds: Grounds of application 1. Hon. Judge Street failed to hold that the AAT failed to apply correct Test in relation to Complementary Test s 36(2) (aa) 2. The AAT made inconsistent assertions on the Credibility testimomny [sic] 3. The appellant was denied procedural fairness and natural justice when the hearing was not conducted fairly and freely .Made decision on assumptions. 4. Other applicationsl [sic] Appellant want to attend hearing 1.[*If rule 35.14 applies]The Applicant apples for an order dispensing with compliance with rule 35.13 20 At the hearing this afternoon the applicant submitted that he had sought to file an application for leave to appeal out of time because he was unfamiliar with legal process and had no legal advice. Mr Eskerie for the Minister conceded that the Minister had suffered no prejudice from the late application however he also submitted that that the explanation given by the applicant was inadequate. In my view it is barely adequate. 21 The real question guiding the exercise of the Court's discretion in this case as to whether an extension of time and leave to file should be granted concerns the merits of the appeal in respect of which the applicant seeks leave: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. The draft grounds of appeal are set out in the affidavit also filed by the applicant on 16 May 2016, and are as follows: 1. Hon. Judge STREET of the Federal Circuit Court failed to hold that Administrative Appeal 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 to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection. The Tribunal failed to understand that the complementary Protection criteria is intended to introduce greater efficiency, transparency and accountability into Australia's arrangements for adhering to its non-refoulement obligation under the International Covenant on Civil and political rights (ICCPR) The Hon. Judge ignore to hold that the RRT totally overlooked the intention behind introduction of Complementary Protection. 2. The Hon. Judge failed to hold that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction. 3. The Hon. Judge failed to hold that the Tribunal made inconsistent assertions on the credibility testimony. He was denied procedural fairness. Hon Judge failed to hold that the AAT failed to identify accurately applicant's social group (BNP). 4. The appellant claims that he was denied natural justice and procedural fairness when his application was dismissed without any explanation of reasons given at the time of hearing. The AAT intentionally asked several irrelevant questions to undermine and confuse the applicant during hearing. The hearing was not fair and free. His application was dismissed only on the assumption that the appellant has no grounds for his case. 22 It is helpful to look at each ground before the Court to assist the Court to form a view as to the merits of the prospective appeal.

Ground 1 23 The first ground relates to whether the Tribunal incorrectly applied the test in respect of s 36(2)(aa). 24 As French CJ observed in Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25 at [2][footnote]: The purpose of s 36(2)(aa) is to provide for a criterion for a protection visa on the basis of a non-refoulement obligation contained or implied in the International Covenant on Civil and Political Rights or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, if the Minister is not already satisfied that the non-citizen is owed protection obligations under the Refugees Convention as amended by the Refugees Protocol - Australia, House of Representatives, Migration Amendment (Complementary Protection) Bill 2011 , Explanatory Memorandum at 10 [65]. 25 In its decision the Tribunal said as follows: 9. If a person is found not to meet the refugee criterion in s.36 (2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s. 36 (2)(aa) ("the complementary protection criterion"). 10. In accordance with Ministerial Direction No. 56, made under s. 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In particular, the Tribunal has had regard to the DFAT report on Bangladesh dated 20 October 2014. 26 It is clear from the decision of the Tribunal that it gave considerable attention to the question whether the applicant would be likely to suffer harm should he return to Bangladesh. In particular at [31] of its decision the Tribunal said: The Tribunal also finds that the applicant is not entitled to complementary protection. The Tribunal has rejected the applicant's claimed involvement with the BNP in Bangladesh and has rejected his claim that he will be imputed with any political opinion relating to such involvement. Although the Tribunal has accepted that the applicant had engaged in some activities in BNP in Australia (which appear to have been social rather than political activities), there is nothing before the Tribunal to indicate that such activities would be of any adverse interest to anybody in Bangladesh. In particular the Tribunal is mindful of the following information contained in the DFAT Country Report on Bangladesh published on 20 October 2014: DFAT does not believe political activity undertaken whilst out of Bangladesh is generally noted by Bangladeshi authorities. High-profile cases, such as individuals convicted in absentia of war crimes by the International War Crimes Tribunal, would be interest to authorities. 27 The reasons for decision of the Tribunal disclose no error in its approach to s 36(2)(aa) of the Act. Accordingly I can identify no error in the approach of the primary Judge in refusing to disturb the decision of the Tribunal in this respect. Ground 1 has no merit.

Ground 2 28 The applicant complains that the primary Judge failed to find that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction. This is a very general claim which, without particularisation, is meaningless. 29 In my view it lacks merit.

Ground 3 30 In ground 3 the applicant asserts that the Tribunal made inconsistent findings in respect of his credibility, denied him procedural fairness and failed to identify his social group as the BNP. However: as a general proposition findings as to credit are findings of fact, to be made by the Tribunal; the applicant does not identify which credit findings of the Tribunal were inconsistent; the primary Judge found that the Tribunal's adverse findings of credit were open and cannot be said to lack an evident and intelligible justification. The applicant does not identify how the primary Judge erred in respect of this finding; it is clear from the reasons for decision that the Tribunal understood the applicant's claim that the group with which he identified was the BNP. It is equally clear that the Tribunal did not accept that the applicant had ever been a supporter of the BNP in Bangladesh or involved in their activities there. Further, the Tribunal was satisfied that the applicant's engagement in BNP activities in Australia was social rather than political. 31 Finally, there is no material before me to support a finding that the applicant was denied procedural fairness in connection with the Tribunal's assessment of his credit. 32 Ground 3 lacks merit.

Ground 4 33 In ground 4 the applicant complains in respect of the manner in which the Tribunal conducted the hearing, in particular its allegedly confusing approach to questioning the applicant and the alleged irrelevance of questions it posed of the applicant. 34 The applicant does not point to any such line of questioning. The primary Judge at [26] comments that there was no substance in that contention on the face of the Tribunal's reasons or in the material in the court book. His Honour further observes that he was satisfied on the basis of that material that the applicant had had a genuine hearing in the Tribunal. 35 I am unable to identify any error in the findings of his Honour.

Conclusion 36 At the hearing this afternoon the applicant also relied on additional written submissions filed on 29 July 2016 in which he alleged that the Tribunal had misconstrued the facts before it. While the applicant may have formed that view, the material before me suggests rather that the Tribunal simply did not accept the version of events put to it by the applicant. The Tribunal is entitled to make findings of fact open to it, as arbiter of fact, and is not required to uncritically accept the submissions of the applicant. 37 In my view the draft grounds of appeal have no merit. The proper order is to refuse the applicant's application for extension of time and leave to appeal, with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Migration Act 1958(Cth)ss 36(2)(aa), 91R(3)

Federal Court Rules 2011(Cth)rr 35.13(a), 35.14

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