FEDERAL COURT OF AUSTRALIA SZTND v Minister for Immigration and Border Protection [2015] FCA 115 Citation: SZTND v Minister for Immigration and Border Protection [2015] FCA 115 Appeal from: SZTND v Minister for Immigration & Anor [2014] FCCA 2703 Parties: SZTND v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1298 of 2014 Judge: COLLIER J Date of judgment: 24 February 2015 Catchwords: Migration – concerns of applicant credibility – absence of tribunal finding letter authenticity – letter produced by applicant not reliable – weight given by tribunal on oral and documentary evidence – not courts role to engage merits review of tribunal assessment of letter Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Date of hearing: 23 February 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 25 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First and Second Respondents: Ms M Stone of DLA Piper IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1298 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZTND Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE OF ORDER: 24 FEBRUARY 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The appeal be dismissed with costs. 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 1298 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZTND Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE: 24 FEBRUARY 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before the Court is an appeal from the decision of a Judge of the Federal Circuit Court of Australia, in which his Honour dismissed with costs an application to review a decision of the Refugee Review Tribunal dated 18 October 2013. Background 2 The appellant is a male citizen of Bangladesh, who arrived in Australia on 13 April 2012 as the holder of a Subclass TBE Short Stay (Offshore) (UC456) Business visa, which was valid until 12 July 2012. 3 The appellant applied for a Protection (Class XA) visa on 7 June 2012. The primary judge summarised the relevant claims of the appellant in respect of that application at [4]-[8] as follows: 4. … The applicant claimed to fear harm in Bangladesh because of his membership of, and activities on behalf of the Bangladesh Nationalist Party ("BNP"). 5. He claimed to have been a Joint Secretary and Vice President of the student wing of the BNP at university between 2001 and 2004. Further, that he had worked for and assisted a BNP candidate in elections in 2001 and 2008. He claimed to have become the Joint Secretary of Ward No.41 North of the BNP in Dhaka. 6. The applicant claimed to fear harm from members of the Awami League ("AL") who were politically opposed to the BNP. He claimed to have been beaten by AL activists on 29 September 2010. Further, that he reported the attack to the police, who did nothing. 7. The applicant also claimed that in 2011 he became one of the executive members of the Thana Committee (presumably a committee of, or associated with, the BNP, although this remained unexplained in the applicant's statement). He was again beaten by AL supporters on 25 May 2011. A relative took him to a private medical clinic after finding the applicant unconscious in the street. The applicant's father reported this incident to the police. However, the police told his father that a complaint had been made against the applicant. 8. The applicant claimed that he had left Bangladesh because he found it difficult to live there. He feared "persecution" and came to Australia to seek protection as a refugee. 4 The appellant was interviewed by the delegate of the Minister on 24 September 2012. On 23 November 2012 the delegate refused the appellant's application for a protection visa. 5 The appellant applied for review to the Tribunal on 20 December 2012 and was assisted by a registered migration agent. The Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa on 18 October 2013. 6 On 14 November 2013 the appellant applied to the Federal Circuit Court for a review of the decision of the Refugee Review Tribunal. The application for review was dismissed by the Federal Circuit Court on 21 November 2014. Decision of the Tribunal 7 The appellant, accompanied by a registered migration agent, attended a Tribunal hearing on 20 September 2013 and gave evidence in respect of his application. The appellant also claimed that family members in Bangladesh had had difficulties because of him, that the same group that attacked him had also attacked his family, including torturing his parents, and that he had attended BNP meetings in Australia. 8 In summary, the Tribunal's findings were as follows: The Tribunal accepted that the appellant was a BNP supporter, but did not accept that he held positions in the BNP in Bangladesh which he had claimed. The Tribunal did not accept that the appellant was targeted for harm by Awami League members because of his BNP membership or activities in Bangladesh. The Tribunal did not accept the appellant's claims concerning potential harm to his family in Bangladesh arising from his activities. The Tribunal did not accept that the appellant had been attacked in 2010 and 2011 as he had claimed. The Tribunal did not accept that there was a real chance that the appellant would suffer serious or significant harm in Bangladesh for the reasons he claimed. Although the Tribunal accepted that the appellant had attended some BNP meetings and participated in some BNP activities in Australia, it did not accept that, as a result, the appellant feared harm in Bangladesh or that there was a real chance that he would suffer serious or significant harm in Bangladesh. Federal Circuit Court proceedings 9 In the Federal Circuit Court the appellant relied on the following grounds of review: 1. The Tribunal made an error in deciding my application with the Tribunal particularly in saying that "the Tribunal does not accept as true that the applicant was targeted for harm" without any reasons for explanation. 2. The Tribunal was biased by the Country Information and assess the applicant's case without open mind and particularly the document was submitted by the applicant denied the authenticity of this document on the basis of the country information unreasonably. 3. The Tribunal failed to Consider the totality of the case and made an error. (Errors in original.) 10 On 11 December 2013 the appellant's case was set down for final hearing in the Court below. Orders were made giving the appellant the opportunity to file any amended application and any evidence by way of affidavit, in support of his grounds and written submissions. 11 At [14] of his reasons for judgement, his Honour observed that: … Given the nature of the grounds of the application I urged the applicant to consider obtaining legal advice. Nothing further was filed by the applicant in the nine months available since the first Court date. 12 At the hearing the appellant appeared in person and was assisted by an interpreter. His Honour noted that the appellant handed up two documents, namely a "response" to the Minister's written submissions, and a bundle of news articles from various sources. In relation to the "response" his Honour said: 17. The "response" did no more than restate his claims to protection and take issue with the Tribunal's findings about the credibility of the applicant. These findings were reasonably open to the Tribunal on what was before it and it gave cogent reasons for them. In that light, the "response" asks the Court to engage in impermissible merits review. 13 His Honour noted also that the appellant complained in the response document that the Tribunal did not carry out a proper inquiry of the documents provided by the appellant, in particular to the letter he had submitted to the Tribunal. Similarly the appellant complained that the Tribunal did not conduct a proper inquiry with a competent agency in Bangladesh as to the origin and authenticity of the relevant letter. His Honour observed: 19. … the Tribunal is under no such obligation to inquire. This was not an inquiry of a critical fact the existence of which was easily ascertained … Further, the factual assertions contained in this "response" as to the providence [sic] of the letter were not before the Tribunal, therefore no jurisdictional error could be made out in this regard. 20. Before the Court the applicant again stated that the Tribunal should have believed him and that the political situation in Bangladesh is "really bad". This again, does no more than take issue with the Tribunal's findings and, therefore, seeks impermissible merits … 14 In relation to media reports tendered by the appellant concerning events in Bangladesh, his Honour noted that they had all been downloaded from the internet after the date of the Tribunal's decision, and in effect were used by the appellant to seek an impermissible merits review in the Court below. 15 His Honour found that none of the appellant's grounds established jurisdictional error on the part of the Tribunal. In those grounds of review the appellant sought impermissible review of the Tribunal's findings. Further, the claim of the appellant that the Tribunal was biased was not substantiated, as the findings of the Tribunal were reasonably open to it. Finally, there was nothing before the Court to indicate that the Tribunal failed to consider any aspect of the appellant's claims. Proceedings in this Court 16 The appellant filed a Notice of appeal from the Federal Circuit Court of Australia on 10 December 2012. The grounds of appeal are as follows: 1. The trial court made an error in taking into account that RRT did not accept that held a position in the Party neither the appellant was targeted by the Awami League activists. The Tribunal did it to negate all the Refugee applicant of the country where from the appellant came. 2. The Tribunal made an error and the decision is erroneous and this decision based on country information not based on document the Tribunal influenced by the country's fraud. Thus the trial court made an error in taking into account the above illogical decision. (Errors in original.) 17 Ground 1 of the notice of appeal appears to raise an issue of bias in the Tribunal, in that either the Tribunal was biased against the appellant because he was from Bangladesh or the Tribunal was biased against all applicants from Bangladesh. 18 In my view this ground cannot be substantiated. In particular I note: the Tribunal's lengthy summary of the claims of the appellant; the Tribunal's observation, based on independent country information, that there was support for the appellant's claims that there is political violence and conflicts between opposing parties in Bangladesh and that sometimes those with a political profile are targeted for harm by members of opposing factions; the Tribunal's acceptance that the appellant was a BNP supporter; the Tribunal's acceptance that the appellant had attended some BNP meetings/activities in Australia. 19 These findings of the Tribunal in my view support a finding by this Court that the Tribunal carefully considered the appellant's case and was prepared to accept his claims where it considered those claims credible. That the Tribunal did not find all of the appellant's claims credible was for the Tribunal as the adjudicator of fact in this case. A refusal by the Tribunal to believe everything put to it by the appellant, including the reliability of facts contained in the letter upon which the appellant relied, does not, of itself, constitute bias by the Tribunal against the appellant. 20 The second ground of appeal was addressed by the appellant at the hearing before me. In particular, the appellant takes issue with the finding of the Tribunal concerning his credibility, and the letter of 13 August 2012 signed by the President of the BNP Ward No. 41 which was produced by the appellant to support his claims. Relevantly, the letter set out details of the positions held by the appellant with the BNP whilst he was university and subsequently, as well as descriptions of altercations involving the appellant and members of the opposing Awami League. 21 In my view there is some merit to the appellant's submissions concerning the approach taken by the Tribunal to the letter. Specifically, there appears to be some disconnect between the apparent absence of the Tribunal finding that the letter produced by the appellant was not authentic (as observed by the Judge below at [31]), and the Tribunal finding that the facts to which the letter adverted were unreliable. The Tribunal found that "the applicant had told the writer of the letter his details and the details of what had happened to him so that the writer could include those details in the letter; he said that the writer knew all the details about him that were in the letter because he told the writer those things for the letter" (at [26]). The Tribunal went on to say at [26]: Given the Tribunal's concerns about the applicant's credibility and 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 document produced by the applicant is not reliable evidence of the facts in it. Although the applicant's adviser submitted that before he produced the letter to the Tribunal he telephoned the writer of the letter to check its authenticity and submitted that 'it is my understanding that he wrote the letter and he is the guy he said he was' he could not tell the Tribunal how he was satisfied that the person to whom he spoke was the ward president of the BNP, that is the writer as identified in the letter. 22 At the hearing before me the appellant strongly submitted that the Tribunal had misunderstood him, that he had not made up the material for inclusion in the letter, and that the letter was authentic. 23 On balance, while I have some concerns about the approach of the Tribunal in respect of this letter, I also note that the Tribunal made extensive factual findings concerning the appellant's claims and credibility. This is apparent from [22]-[25] of the reasons for decision of the Tribunal. The view already formed by the Tribunal of the appellant's credibility from the material before it clearly coloured the Tribunal's view of the contents of the letter of 13 August 2012, and not the other way around. 24 Weight – if any – given by the Tribunal to evidence before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Moreover findings in respect of the credibility of the appellant are matters for the Tribunal: McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423. It is not the role of this Court under the Migration Act 1958 (Cth) to engage in a merits review of the decision of the Tribunal in respect of its assessment of the letter of 13 August 2012, as sought by the appellant. No jurisdictional error infects the decision of the Tribunal. No appealable error in the decision of the Court below has been demonstrated. 25 The appropriate order is that the appeal be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 24 February 2015