FEDERAL COURT OF AUSTRALIA SZTHP v Minister for Immigration and Border Protection [2015] FCA 122 Citation: SZTHP v Minister for Immigration and Border Protection [2015] FCA 122 Appeal from: Application for leave to appeal: SZTHP v Minister for Immigration & Anor [2014] FCCA 2242 Parties: SZTHP v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1039 of 2014 Judge: FARRELL J Date of judgment: 24 February 2015 Catchwords: MIGRATION – application for leave to appeal – appeal from decision of Federal Circuit Court dismissing application for judicial review – decision of Refugee Review Tribunal – merits of appeal Legislation: Federal Court of Australia Act 1976 (Cth) Federal Circuit Court Rules 2001 (Cth) Cases cited: SZTHP v Minister for Immigration & Anor [2014] FCCA 2242 Date of hearing: 24 February 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Carr of DLA Piper Australia Counsel for the Second Respondent: The second respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1039 of 2014 BETWEEN: SZTHP Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FARRELL J DATE OF ORDER: 24 February 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the first respondent's costs as agreed or taxed. 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 1039 of 2014 BETWEEN: SZTHP Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FARRELL J DATE: 24 February 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from the judgment of Judge Nicholls of the Federal Circuit Court delivered on 29 September 2014 in SZTHP v Minister for Immigration & Anor [2014] FCCA 2242 (SZTHP). 2 On 23 September 2013, the applicant filed an application in the Federal Circuit Court seeking judicial review of a decision of the Refugee Review Tribunal made on 26 August 2013 which affirmed the decision of a delegate of the Minister refusing to grant the applicant a Protection (Class XA) visa. 3 The primary judge dismissed the application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12(2) provides: "To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory". Accordingly, leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 4 The applicant is a male citizen of Bangladesh who was born in January 1984. He arrived in Australia on 9 March 2012 as a holder of a Maritime Crew (Class ZM) Subclass 988 visa. The applicant applied for the protection visa on 12 April 2012. 5 The Tribunal's Statement of Decision at [5] indicates that in his visa application forms, the applicant claimed to have left Bangladesh because of fear of persecution for his political beliefs. He said that his political opponents are fierce and are backed by the government and they were trying to kill or harm him. He said that he fears humiliation, persecution based on false charges, and assassination. He said that the State could not protect him because it is corrupt. Grounds 6 The application for leave was filed on 13 October 2014. The application and draft notice of appeal proposed six grounds of appeal. They are (without alteration): 1. The Refugee Tribunal Failed to consider my overall credibility at the time of assessment of my protection visa Application. 2. That I Fear for my life if I am returned to Bangladesh due to my political beliefs. 3. That as a Vice President of Bangladesh National Party (BNP) my speech on 1 December 2011 led to an assault and I was hospitalised at Shonaimuri Health Complex for 7 days. 4. That I was stabbed, kicked and Punched by 10-12 assailants what made me fear for my life. 5. That I have been implication in a murder allegation of a Awami league cadre Zakir Hossain on 14 December 2011 and I fled the country. 6. I continue to fear that I will be persecuted or even killed on my return. 7 The applicant filed an affidavit affirmed on 10 October 2014 in support of his application. He affirmed that he is a genuine refugee who deserted ship on 13 March 2012 and otherwise set out the grounds of his notice of appeal. Hearing 8 The applicant appeared at the hearing today in person and with the assistance of an interpreter. He provided no written submissions and said that he could not afford a lawyer. He asked for an adjournment of two and a half months to consult a lawyer. I rejected that request as the applicant had adequate notice of the time of this hearing and to consult a lawyer. 9 I explained to the applicant that having regard to well established principles, in determining whether to grant leave to appeal I would need to consider: The merits of the proposed grounds of appeal; that is whether, in all the circumstances, the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration by a Full Court; and Whether substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong. 10 In support of his grounds, the applicant submitted that since the hearing by the Tribunal, the son of a former prime minister of Bangladesh had been shot and the former prime minister deprived of food; that indicated the peril of the situation in Bangladesh and the basis of his fear of returning. Even accepting that the applicant has a genuine fear of returning to Bangladesh, there is no evidence supporting this submission and it does not demonstrate error by the Tribunal or the primary judge in considering the applicant's applications to them. 11 Second, the applicant complained that the Department had not advised him of the need to provide detail of his political affiliation in his application; the brevity of his application to the Department should not be held against him. I reject that submission. 12 The Tribunal's Statement of Decision and Reasons records at [29] that the Tribunal member asked the applicant why he had not raised key claims in his application for the protection visa: he did not refer to his involvement with the Bangladesh National Party, the position he held with that Party, the vandalism of his shop, the political speech he gave in December 2011, the assault on him by Awami members, or the specific false accusation. I note that these are matters the applicant now raises in proposed grounds 2-6. 13 Having regard to the facts that the applicant has some English and is university educated, that he could have asked for help from his uncle, members of the Bengali community or the Department, that the forms clearly state that all information about the claim should be set out in the visa application and the applicant provided documentary evidence of his education and newspaper clippings with this application, the Tribunal did not accept the applicant's explanation that he thought he could provide the information at a later interview and so only wrote a few lines in general terms on the visa application: see [45] of the Statement of Decision and Reasons. The Tribunal concluded at [45] that: "Overall the fact that he omitted such important evidence leads me to conclude that his evidence has later been fabricated to bolster his claims". 14 It is for the applicant to provide all relevant information on the basis of which the Department and the Tribunal can consider his claims for protection: from my reading of the Tribunal's Statement of Decision and Reasons, I am satisfied that the applicant had adequate opportunity to prosecute his claim. As the decision maker, it was open to the Tribunal to take into account in forming its view of the applicant's credibility the applicant's failure to raise these important matters in the visa application. 15 In relation to the second to sixth proposed grounds of appeal, I accept the Minister's submission that those grounds restate the applicant's claims for protection. This Court is not able to engage in merits review of the Tribunal's decision and the grounds do not disclose jurisdictional error by the Tribunal. Those grounds are accordingly dismissed. 16 In relation to the first proposed ground of appeal, the Minister submitted that the Tribunal did assess the applicant's credibility and gave comprehensive reasons for its finding. The primary judge described this as the "key issue" before the Tribunal: see SZTHP at [8]–[12]. I accept that as decision-maker par excellence, it was reasonably open to the Tribunal to find on the material and evidence before it that the applicant was not a credible witness and to consider and reject the applicant's factual claims, including those set out in proposed grounds 2-6 in that light. The primary judge did not err in reaching that conclusion. 17 I am satisfied that the draft grounds of appeal have no merit and that no substantial injustice will result to the applicant by dismissing his application. On my reading of the Tribunal's Statement of Decision and the primary judge's reasons there was no jurisdictional error on the part of the Tribunal, and no appealable error on the part of the primary judge. 18 The application is dismissed and I will order that the applicant pay the Minister's costs as agreed or taxed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate: Dated: 25 February 2015