FEDERAL COURT OF AUSTRALIA SZSXU v Minister for Immigration and Border Protection [2014] FCA 1011 Citation: SZSXU v Minister for Immigration and Border Protection [2014] FCA 1011 Appeal from: SZSXU v Minister for Immigration & Anor [2014] FCCA 1133 Parties: SZSXU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 578 of 2014 Judge: LOGAN J Date of judgment: 19 August 2014 Catchwords: APPEALS AND RELATED – migration – appeal from judicial review decision of Federal Circuit Court – whether that Court should have found Refugee Review Tribunal demonstrated bias given the extent of questioning by it of appellant – whether Tribunal misunderstood test for protection visa – whether Tribunal's findings reasonably open Held: the appeal is dismissed Legislation: Migration Act 1958 (Cth) s 36 Cases cited: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 cited SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 cited Date of hearing: 19 August 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 578 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSXU Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 19 AUGUST 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The Appellant is to pay the First Respondent's costs, fixed to the amount of $3,400. 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 578 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSXU Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LOGAN J DATE: 19 AUGUST 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In 2012, the appellant embarked on a voyage for Australia from Indonesia on a boat which came to be identified by the code name "Opal". That boat was intercepted in the course of that voyage by Australian authorities. As a result, the appellant came to be transferred to the Australian external territory of Christmas Island on 12 April 2012. He did not, at that time, have a passport or any identifying documents with him. The result, though, of investigation by officers of, what is now termed, the Department of Immigration and Border Protection is that it is accepted as the appellant has always asserted that he is a citizen of Bangladesh. That particular assertion was accepted not just at the stage of an initial assessment of the appellant, but at all subsequent stages in the process of administration under the Migration Act 1958 (Cth) (Migration Act). 2 As a result of a decision by the predecessor in office of the first respondent, the Minister for Immigration and Border Protection (Minister), as that ministerial office is now known, to lift what is, however inelegantly but nonetheless accurately, described as "the section 46A bar", the appellant came permissibly to lodge a valid application for that class of visa known as a protection visa. On 7 March 2013, a delegate of the Minister refused to grant the appellant a protection visa. As was his right, the appellant then sought the review of that refusal decision by the Refugee Review Tribunal (Tribunal). 3 On 15 May 2013, for reasons which were recorded in writing and sent to the appellant, the Tribunal decided to affirm the Minister's delegate's decision not to grant the appellant a protection visa. The appellant then sought the judicial review of the Tribunal's decision by the Federal Circuit Court of Australia (Federal Circuit Court). On 26 May 2014, that court dismissed with costs the appellant's judicial review application. It is from that judgment that the appellant now appeals to this Court. The grounds of appeal are these: 1. Hon. Judge RAPHAEL of Federal Circuit Court of Australia failed to hold that the 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) of the Migration Act 1958. 2. Appellant claims that the Tribunal misconstrued the facts and asked many irrelevant questions to discredit the oral evidence .. He was denied procedural fairness when the hearing was not conducted freely and fairly. … 3. The appellant claims that the Tribunal failed to deal with the main issue of fear of persecution. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm. .. 4 The Minister's submission in respect of the appeal included a submission that the grounds of appeal differed from the grounds of review which, as amended, had been dealt with in the judgment of the Federal Circuit Court. This is true. 5 It is always important to recall two things about the jurisdiction consigned to this Court in respect of matters of this kind. First and foremost, this Court and for that matter, the Federal Circuit Court, have no role to play at all in making evaluative decisions on the factual merits of claims for a protection visa. Secondly, and pertinently in relation to the submission made by the Minister, the proceeding is an appeal, not an exercise of original jurisdiction. That means that it is necessary to show error on the part of the Federal Circuit Court. 6 Exceptionally, that error may be found in a failure to appreciate that the Tribunal's decision was attended with jurisdictional error even if the particular jurisdictional error did not feature as a ground of review. To permit that would require a grant of leave to raise as a ground of appeal a point not taken below. It is, nonetheless, not impossible for a Tribunal decision to be quashed, on appeal, even though the particular ground was not pressed before the Federal Circuit Court. 7 The Minister's point is that, even accepting this, there is just no merit in any of the grounds of appeal. 8 To understand the question of whether the grounds have any merit it is necessary to summarise the claim which the appellant made for a protection visa. The claim is set out in detail in Part C of his application for a protection visa lodged with the Minister's department. In essence, though, his claim centres around an assertion on his part that he and his family were supporters of the Bangladesh National Party (BNP) and had been the subject of false accusations against them by supporters of the Bangladeshi Awami League (Awami League). 9 These accusations, so the appellant claimed, had seen him and his family accused of murder. As a result, he said that he had left Bangladesh in 1996 and his family had relocated to different parts of Bangladesh to avoid being captured. The Awami League was then in power. The appellant's claim was that he had fled to Malaysia and there resided illegally for the next decade. He did return, so he stated, to Bangladesh in 2006 having made brief earlier visits to see his family. He remained in Bangladesh for the next few years because the BNP was then in power and he thought he would be safe. 10 The appellant's claim was that, upon the return to power of the Awami League, he was accused by a member of that party of theft and arson as a result of which he fled to India some few days later. Eventually, having, so he said, spent some short time in Bangladesh and then in Malaysia he came to journey to Australia via Indonesia. 11 It is apparent from the Tribunal's reasons not just that the Tribunal well understood and appreciated the foundation of the claim which the appellant made for a protection visa but that the Tribunal closely engaged with the merits of that claim. The Tribunal was not obliged to accept uncritically the appellant's account in support of his claim or to accept documents tendered by him. 12 It is evident from the Tribunal's reasons that the Tribunal asked the appellant a number of questions at the hearing which it offered so as better to understand and so as to offer him an opportunity to elaborate upon his claim. It is also obvious from the Tribunal's reasons that inconsistencies in the answers given by the appellant proved telling in an absence of satisfaction on the part of the Tribunal that the appellant, in terms of s 36(2)(a) of the Migration Act, a person to whom Australia had protection obligations under the Refugees Convention. That is not to say that the Tribunal disbelieved all of the appellant's statements. The Tribunal did accept that the appellant generally favoured the BNP as one of Bangladesh's main political parties (see paragraph 46). 13 Further, in approaching the review task, the Tribunal member made it explicit that he appreciated that applicants might find it difficult to explain a chronology and made allowance for this (see paragraph 17). Yet further, the Tribunal member also made it explicit that he did not consider it appropriate to take what he described as an "overly stringent" approach to questions of credibility (see paragraph 18). There is no reason to think that these statements in the Tribunal's reasons were mere pious incantations. 14 When one has regard to appendix B to the Tribunal's reasons one finds there a summary of applicable principle in relation to the determination of claims for a protection visa, including in that regard, a complimentary protection visa, having regard to case law in respect of s 36 of the Migration Act and the Refugees Convention. The Tribunal has expressly incorporated, by reference, this summary in appendix B (see paragraph 6). Once again, there is nothing in the Tribunal's reasons which would admit of a conclusion that this is but a formulistic incorporation. 15 It became obvious in the course of the appellant's oral submissions today that, at the heart of his complaint concerning the Tribunal's decision and, for that matter, the disposal of his judicial review application, was a deep, and I do not doubt, genuine feeling on his part that his claims should have been believed. That is by no means an uncommon feeling on the part of appellants in this type of case and none the worse for that. Equally though, it is a necessary discipline on the part of both Federal Circuit Court judges and on appeals, judges of this Court, to accept that findings as to credibility are par excellence for the Tribunal to make. It is only if the Tribunal's fact finding process is attended with jurisdictional error that a Tribunal decision may be quashed. 16 In this case, even though the Tribunal accepted that the appellant had involvement with the BNP, the Tribunal did not accept that the involvement was attended with all of the adverse consequences that he had claimed. In particular, the Tribunal did not accept that the appellant was subject to any politically motivated criminal charges, that he had an adverse profile for political reasons or that the police or others planned to arrest or kill him if he returned to Bangladesh (see paragraph 49). These were findings that were reasonably open. It is nothing to the point as to whether I or a Federal Circuit judge may have made like findings. 17 In addressing whether or not, on the findings that the Tribunal did make, it was satisfied that there was no real chance or for that matter, in relation to the complimentary protection visa, a real risk, the Tribunal did not misapprehend the law. Appendix B, earlier mentioned, contains a correct statement of principle. I do not see any tension between that and the way, in the main body of the Tribunal member's reasons, the Tribunal member has applied that test to the facts found. Ground one, therefore, must fail. 18 The second appeal ground must also fail. Whilst there is no transcript of the hearing before the Tribunal, the Tribunal was entitled to ask the appellant questions that the Tribunal member did say is apparent from the summary offered in the reasons. This was not a denial of procedural fairness. If anything, it was an affording of procedural fairness. By that I mean that the Tribunal member seems, having regard to the reasons, to have given the appellant particular opportunities to address issues about which the Tribunal was concerned or wanted further information. 19 Insofar as ground 2 might be thought to contain within it an allegation of bias or apprehended bias by the reference to a failure to conduct the hearing "freely and fairly" there is no evidence to support any such conclusion. Ground 2 must therefore fail. 20 The final ground contains two propositions. One alleges the failure to deal with the "main issue of fear of persecution"; the other is an allegation of a failure to follow "rules of real risk test". As to the former, and as I have already observed, the Tribunal closely engaged with the very basis upon which the appellant claimed a protection visa and applied the applicable law to that claim. As to the latter, and again as I have already observed, there is, in appendix B, a correct statement of the nature of the test for a complimentary protection visa and no tension between that and the main body of the reasons. Further, as was put on behalf of the Minister, there is symmetry between the notion of a real chance and a real risk referred to in s 36(2)(a) and s 36(2A)(a), respectively, see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 and SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26. 21 It should be noted that the learned Federal Circuit Court judge, who self-evidently from his Honour's reasons for judgment went out of his way to give meaning to the grounds of review, reached a like conclusion as to the question of whether the Tribunal had failed to apply the real chance test in accordance with the law. 22 However one approaches the grounds of appeal, the appeal is one which must fail. I therefore dismiss the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 22 September 2014