FEDERAL COURT OF AUSTRALIA

SZSPB v Minister for Immigration and Border Protection [2013] FCA 1347 

Citation:	SZSPB v Minister for Immigration and Border Protection [2013] FCA 1347	
		
Appeal from:	Application for leave to appeal:  SZSPB v Minister for Immigration & Anor [2013] FCCA 922 	
		
Parties:	SZSPB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL	
		
File number:	NSD 1601 of 2013	
		
Judge:	RANGIAH J	
		
Date of judgment:	15 November 2013	
		
Catchwords:	MIGRATION – application for leave to appeal from Federal Circuit Court – applicant applied for a Protection (Class XA) visa – whether jurisdictional error by Refugee Review Tribunal – whether decision of the Federal Circuit Court attended by sufficient doubt to warrant a grant of leave to appeal – whether substantial injustice would result if leave were refused 	
		
Legislation:	Migration Act 1958 (Cth) ss 91R(1), 424A, 476(2)(a)
Federal Circuit Court Rules 2001 r 44.12	
		
Cases cited:	Abebe v The Commonwealth of Australia (1999) 197 CLR 510 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied 	
		
Date of hearing:	15 November 2013	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	37	
		
Counsel for the Applicant:	The Applicant appeared in person	
		
Solicitor for the First Respondent:	Sparke Helmore	
		
Second Respondent:	The Second Respondent filed a submitting notice save as to costs	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 1601 of 2013	

BETWEEN:	SZSPB
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RANGIAH J	
DATE OF ORDER:	15 NOVEMBER 2013	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	The name of the first respondent be amended to the Minster for Immigration and Border Protection.
2.	The application for leave to appeal be dismissed.
3.	The applicant pay the costs of the first respondent, as agreed or assessed.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 1601 of 2013	

BETWEEN:	SZSPB
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RANGIAH J	
DATE:	15 NOVEMBER 2013	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
1		The applicant seeks leave to appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for constitutional writs in respect of a decision of the Refugee Review Tribunal.  The application was dismissed pursuant to r 44.12 of the Federal Circuit Court Rules 2001 on the basis that it failed to disclose an arguable case for the relief claimed.  Rule 44.12(2) provides that such a dismissal is interlocutory.  Accordingly, the applicant requires the leave of this Court to appeal.  
2		The applicant is a citizen of Bangladesh, who arrived in Australia on 25 October 2011.  On 18 November 2011, the applicant applied for a protection visa.  A delegate of the first respondent made a decision to refuse the application on 8 June 2012.  
3		The applicant claimed to be an active member of the Bangladesh Nationalist Party (“BNP”) and claimed that he was threatened with death or imprisonment by the opposing Awami League (“AL”) after he rejected their offer to join that party.  He said that he had false criminal charges laid against him after his involvement in demonstrations opposing the building of a second airport in Bangladesh.  The applicant claimed that many BNP members were arrested, denied bail and tortured.
4		The applicant said that he went into hiding and arranged his escape to Australia.  He claimed to fear persecution in Bangladesh due to his support for the BNP and that he faced false terrorism charges following his involvement in the airport protest.  
5		The Tribunal found that the applicant’s references to his father’s social profile and political support for the BNP was “very general” and amounted to “only weak, inconclusive evidence of the applicant having grown up in a BNP oriented family”.  
6		The Tribunal noted that the applicant did not raise any claims that his father or family members were targeted on political grounds.  The Tribunal found that the applicant’s description of his own political activities was “repetitive and superficial” and “seemed to be the observations of an outsider” rather than someone with the involvement that he had claimed.  
7		The Tribunal also identified an inconsistency between the applicant’s evidence at the Tribunal hearing that he was an ordinary member of the JBD from 2000 until he departed for Taiwan in 2004 and his evidence at the Department interview in 2003 that he was elected to the position of general-secretary of the JBD.  The Tribunal found the applicant’s explanation that the positions were not mutually exclusive did not resolve its concerns.  The Tribunal also found the applicant’s responses about any supporting documentation to show his involvement in the BNP and its subordinate student and youth groups “unengaged”.
8		While recognising that protection visa applicants may be unable to corroborate their claims, the Tribunal considered the lack of supporting documentation was relevant, given that the BNP was a mainstream party and the applicant was a young business-person who maintained contact with his like-minded family.  
9		The Tribunal found that the applicant’s evidence about his contact with the BNP was vague and cast further doubt on his past or present political interests.  In particular, it noted that he had considerably modified his position about the contact he had with former political associates.  The Tribunal found that the applicant’s stay of five years in Taiwan deepened its concerns and found his claim that the AL attempted to recruit him, after his absence in Taiwan, “unbelievable”.
10		It found that the applicant’s evidence about his ongoing political activities was “uncertain and sparse”, which added to the Tribunal’s “doubts” about the truth of his claims.
11		The Tribunal considered the supporting documents the applicant provided after the Tribunal hearing.  The Tribunal had regard to information about the prevalence of document fraud in Bangladesh and the applicant’s own evidence that he did not know about the possible use of fraudulent documents in his application for a business visa.  The Tribunal identified deficiencies and inconsistencies in the letters presented by the applicant and gave them “very little weight”.
12		The Tribunal also found that the applicant had given false information to the Department and to the Tribunal and that he was a “witness of low credibility”.
13		The Tribunal concluded that the applicant had merely supported the BNP as a member of the general public and rejected his claimed political involvement and profile.  The Tribunal also identified concerns in the applicant’s evidence about his claimed involvement in the protest, including that he spoke only “vaguely” of the groups involved, that his account of his involvement was “confused and changeable” and that the Tribunal “found it difficult to obtain further meaningful details from him”.  
14		The Tribunal considered a purported First Information Report document recording a crime concerning an incident at a police station and naming the applicant as an accused person.  The Tribunal did not accept that it was a genuine document.  It did not accept that the other letters provided by the applicant assisted the applicant’s claim with respect to the airport protest and his claimed subsequent period of hiding.  The Tribunal rejected the applicant’s claim to have been involved in the airport protest.  The Tribunal found that the applicant was a low profile member of the BNP who had no direct involvement in the airport protest.
15		Having found that the applicant was a witness of low credibility, the Tribunal rejected all of his claims for protection.  The Tribunal also noted the applicant’s concerns about the deteriorating law and order situation and other aspects of life in Bangladesh, but found that they related to general living conditions within the country and did not fall within the definition of persecution under s 91R(1) of the Migration Act 1958 (Cth).  
16		The applicant lodged an application in the Federal Circuit Court seeking constitutional writs in respect of the Tribunal’s decision.  
17		Judge Driver stated that the applicant’s principal concern appeared to be that the Tribunal was wrong in its assessment of his claims, and while the application and submissions referred to procedural errors, the particulars generally did not rise above a dispute over the merits of the Tribunal’s decision. 
18		One of the applicant’s grounds asserted that the Tribunal did not understand s 91R(1) of the Migration Act, but his Honour found that there was no substance in that assertion.  The Tribunal’s reasons demonstrated that it did not misunderstand the meaning of persecution, both under the Refugees Convention and the Migration Act.  
19		His Honour considered that one of the grounds had asserted bias on the part of the Tribunal, but that there was no evidence to support an allegation of bias.  
20		His Honour considered that it was open to the Tribunal to reject the value of the letters which the applicant advanced after the hearing to corroborate his claims. 
21		His Honour noted that the applicant asserted that the Tribunal was wrong to refer to the applicant having given false information to the department and Tribunal, but found that the conclusion reached by the Tribunal was open to it on the material before it.  
22		His Honour noted that the applicant asserted a breach of s 424A of the Migration Act, but concluded that no such breach was arguable.  The only information which might arguably have required disclosure pursuant to s 424A was the applicant’s oral evidence before the delegate.  The Tribunal did disclose that information.  Whether or not that disclosure was strictly required, there was no jurisdictional error in the Tribunal’s approach. 
23		His Honour noted that the applicant had asserted that the Tribunal erred in not investigating his claims.  His Honour found that the Tribunal has a duty of review, not of inquiry or investigation.  
24		His Honour noted that the applicant had asserted that the Tribunal failed to comply with an obligation to ensure that he understood the reasons for the rejection of his review application, but found that the Tribunal had no such obligation.  The Tribunal is required to give reasons for its decisions, but is not required to ensure that an applicant understands those reasons.  
25		His Honour found that the applicant had failed to advance any arguable case of jurisdictional error by the Tribunal and therefore ordered that the application be dismissed pursuant to r 44.12 of the Federal Circuit Court Rules.  
26		In order to attract a grant of leave to appeal, an applicant should ordinarily satisfy the cumulative tests described in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 399.  Those criteria are that the decision is attended with sufficient doubt to warrant a grant of leave to appeal and that substantial injustice would result if leave were refused supposing the decision were wrong.  The criteria are not unrelated.  
27		An appeal from a decision of the Federal Circuit Court is by way of rehearing.  Accordingly, it will be necessary for the applicant to demonstrate error on the part of the Federal Circuit Court in any appeal.  
28		The applicant’s proposed notice of appeal contains two lengthy grounds.  They are:
The Honourable Court erred in not considering that the Refugee Review Tribunal (the Tribunal) misunderstood the meaning of persecution under the Migration Act.  The Tribunal was asking a proof that the applicant’s involvement of local politics.  Paragraph 78 of the RRT decision is wrong observation the Tribunal wrongly translated that voice and the Court did not consider it.  The Tribunal transformed applicant’s claims for fear for his life and threat for his life related with his political believe and opinion and activities into a rejectionable way that it did not attract section 91(R) (1) of the Act.  There was nothing before the Court to prove that the applicant was untruthful and superficial the Court wrongly supported those observations.  The concerns for five years in Taiwan is not relevant with the Refugee Convention the applicant expressed his political opinion and involvements in different forms and ways the Court also did not consider it.  The applicant is qualified for complementary protection and the Court did not consider it.  The Court wrongly supported the Tribunal’s observations.  

2.	The Honourable Court erred in not finding that the Tribunal made a procedural mistake when it rejected the review application on the basis of wrong findings and the Court accepted those findings in its favour.  The conclusion reached by the Tribunal was not open to it on the material before it.  The Tribunal is not created to make open observation.  The delegate’s decision was the reason of the review and the Tribunal’s decision so the any observation made by the delegate was considered by the Tribunal was the reason to reject the applicant claim.  The Court did not consider that the Tribunal did not give the applicant adverse information which are the reason or part of the reason to reject the review application.  The Court did not consider that the disclosure was strictly required and in absence of the disclosure a jurisdictional error has occurred and the Court did not consider it.  The Tribunal collect information, documents, papers and evidences to assess the application and make inquiry about those for the purpose of review the Court made a mistake to depart the Tribunal from it routine.  The applicant was not able to understand the decision of the Tribunal and the Tribunal has an obligation that the review applicant understands the decision and the Court did into consider it.  The applicant argued his case but the Court did not consider his submission.  The Tribunal made jurisdictional error that it did not comply with the part 7 of the Act and the Court did not consider it.  

29		In order for the applicant to succeed, it is necessary for him to demonstrate an arguable case of jurisdictional error on the part of the Tribunal.  
30		The applicant’s first ground is entirely concerned with the allegation that the Tribunal erred in its findings of fact and credibility.  Even if any such errors were demonstrated, they would not amount to jurisdictional errors:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137].  The applicant’s first ground and the written submissions that support it do not demonstrate any arguable case of jurisdictional error.  
31		The applicant’s second proposed ground of appeal is also largely concerned with the allegation that the Tribunal erred in its findings of fact and those concerning the applicant’s credibility, and to that extent suffers the same problems as the first ground.  
32		The second ground also alleges that the Tribunal did not give the applicant adverse information which was the reason or part of the reason to reject the application.  It alleges that the Tribunal collected information, documents, papers and evidence which were not given to him.  This apparently raises an allegation that the Tribunal acted in breach of s 424A of the Migration Act.  The material that it is said that the Tribunal ought to have given to the applicant has not been identified.  In those circumstances, the allegation amounts to a mere assertion.  No arguable ground of a breach of s 424A of the Migration Act has been made out.  
33		The second ground also asserts that the Tribunal had an obligation to ensure that the applicant understood the decision.  As Judge Driver correctly decided, there is no such obligation under the Migration Act.  The Tribunal’s obligations, relevantly, are those set out in Division 4 of Part 7 of the Migration Act.  Those obligations do not include any obligation to ensure that the applicant understands the decision.  
34		In his written submissions, the applicant also raised concerns with the decision of the first respondent’s delegate.  However, that decision is a primary decision, which was not reviewable in the Federal Circuit Court by reason of s 476(2)(a) of the Migration Act and, at least for that reason, there is no error in the decision of the Federal Circuit Court with respect to its failure to consider the delegate’s decision.  
35		To the extent that the applicant alleged that the Tribunal ought to have applied certain findings of fact which he alleges were made by the delegate, it may be noted that the Tribunal is not bound to adopt any findings made by the delegate.  It is required to stand in the shoes of the delegate and make the decision for itself.  
36		In my opinion, the applicant has not demonstrated any arguable case of error on the part of the Federal Circuit Court.  In these circumstances, I refuse his application for leave to appeal.  
37		I will make the following orders:
(a)	The name of the first respondent be amended to the Minister for Immigration and Border Protection;
(b)	The application for leave to appeal be dismissed; 
(c)	The applicant pay the costs of the first respondent, as agreed or assessed.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.	

Associate:

Dated:	13 December 2013