FEDERAL COURT OF AUSTRALIA SZVWE v Minister for Immigration and Border Protection [2015] FCA 853 Citation: SZVWE v Minister for Immigration and Border Protection [2015] FCA 853 Appeal from: Application for leave to appeal: SZVWE v Minister for Immigration & Anor [2015] FCCA 1325 Parties: SZVWE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 615 of 2015 Judge: PAGONE J Date of judgment: 11 August 2015 Catchwords: MIGRATION – application for leave to appeal – interlocutory judgment of Federal Circuit Court –whether judgment attended by sufficient doubt to warrant reconsideration – whether Tribunal erred in application of complementary protection criterion – whether applicant denied procedural fairness by refusal of adjournment – role of court on appeal Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a) Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2A) Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Date of hearing: 11 August 2015 Date of publication of reasons: 14 August 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 9 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 615 of 2015 BETWEEN: SZVWE Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: PAGONE J DATE OF ORDER: 11 AUGUST 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's 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 615 of 2015 BETWEEN: SZVWE Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: PAGONE J DATE: 11 AUGUST 2015 PLACE: SYDNEY REASONS FOR JUDGMENT (Revised from transcript) 1 This is an application for leave to appeal a judgment of Street J of the Federal Circuit Court of Australia delivered on 15 May 2015 in Sydney. Leave to appeal is needed because the judgment was an interlocutory decision. The Federal Circuit Court dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and therefore the applicant requires leave to appeal from that judgment under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Leave to appeal should not be granted if the decision from which leave to appeal is sought is not attended by sufficient doubt to warrant its reconsideration: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-9. 2 The application for leave to appeal was dated 28 May 2015 and is supported by an affidavit made by the applicant on that day, by a draft notice of appeal and by written submissions dated 31 July 2015. The applicant's affidavit exhibited a statement made by the applicant dated 21 November 2012 and signed by an interpreter accredited in the Bengali language. The Minister opposes the application and relies upon an outline of submissions dated 4 August 2015 and supplementary submissions dated 7 August 2015. The applicant also made oral submissions this morning in Court. The Minister contends that the application for leave to appeal should not be granted because it cannot succeed for various reasons. The Federal Circuit Court had dismissed the application for judicial review at a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that it was "clearly doomed to failure": SZVWE v Minister for Immigration & Anor [2015] FCCA 1325, [2]. 3 It is desirable to consider first the prospects of the appeal before I deal with some of the other matters raised in the applicant's submissions in writing and orally today. The draft notice of appeal raises four grounds of appeal. The first is as follows: Hon. Judge STREET of the Federal Circuit Court failed to hold that 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)(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-refoulment obligation under the Inernational 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. The substance of the first ground of appeal is that the Federal Circuit Court erred in failing to find that the Tribunal had incorrectly applied the 'complementary protection' criterion in s 36(2)(aa) of the Migration Act. This ground was not, in fact, raised before the Federal Circuit Court judge, and therefore it cannot be said that his Honour had erred by failing to make the findings urged by the applicant. However, it is clear that the Tribunal did not make the error that is alleged in the ground. At the time of the Tribunal's decision, ss 36(2) and 36(2A) of the Migration Act relevantly provided: (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; … (2A) A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. The Tribunal considered the application of the 'complementary protection' provision to the applicant's case in its decision. It concluded that the applicant was not a person to whom Australia owed protection obligations under the 'refugee' criterion in s 36(2)(a) and went on to say at [30]-[33] of its decision: Complementary protection 30. For the reasons given above, I am not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a). 31. Having concluded that the Applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). 32. As noted, I am not satisfied that the Applicant ever suffered harm in Bangladesh for the reasons that he claims, or that he was forced to flee to Dhaka and later to Malaysia because he feared he would be harmed by his cousins and the Awami League, working together, or by the BNP. I am not satisfied that he is at any risk of harm from these sources should he return to Bangladesh. He has not identified any additional matters which could be relevant to an assessment of Australia's complementary protection obligations in his case. 33. In the light of the information before the Tribunal, considered both individually and cumulatively, I am not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Bangladesh there is a real risk that he would suffer significant harm as defined in s.36(2A). There is no suggestion that he satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s.36(2). It is clear from these paragraphs that the Tribunal correctly applied the 'complimentary protection' test in s 36(2)(aa) of the Migration Act in relation to the applicant's case. The Tribunal concluded that he did not meet the 'refugee' criterion in s 36(2)(a) of the Migration Act, and went on to consider whether he may have been covered by the 'complimentary protection' criterion in s 36(2)(aa). The Tribunal found, on the evidence before it, that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country (in this case, Bangladesh), there was a real risk that the applicant would suffer 'significant harm' as defined in s 36(2A) of the Migration Act. 4 The second ground in the draft notice of appeal from the decision of the Federal Circuit Court says: The Hon. Judge failed to hold that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction. This ground, on its face, was obviously not before the Federal Circuit Court, but, in any event, there is nothing in the ground of any substance or content. The ground does not identify any failure by the judge to hold that the Tribunal had exceeded its jurisdiction or had constructively failed to exercise its jurisdiction. The ground is no more than a general statement of error with no error identified. It cannot succeed on appeal. 5 The third ground in the draft notice of appeal is as follows: The Hon. Judge failed to hold that the Tribunal made inconsistent assertions on the credibility testimony. He was denied procedural fairness when the Appellant was denied extension of time to provide some credible evidence in support of his claim (which was pending for translation from Bengali to the English language). The contention that the Tribunal made inconsistent allegations on the credibility testimony was not a matter that was before the Federal Circuit Court, and accordingly, the Federal Circuit Court judge cannot be said to have erred in his decision in that respect. The contention, in any event, is not particularised and, for that reason also is without merit. The same is also true of the claim that the applicant was denied procedural fairness by not being granted an extension of time to provide further evidence. There is no suggestion of any request having been made before, or at, the hearing of the Tribunal for an extension of time in order to provide further submissions or evidence. The Tribunal's decision indicates that the applicant was invited to comment on inconsistencies between (a) the information he had provided in his entry interview upon arriving in Australia and (b) the claims he made in his visa application at the hearing before the Tribunal. The Tribunal explained to the applicant had he could "comment on the information or respond to it…at once, at an adjourned session of the hearing or in writing, with further time available for these purposes if necessary". The applicant responded that he could provide documents from the High Court or Supreme Court in Bangladesh to prove that his claims in relation to which the Tribunal identified inconsistencies were true. The applicant's advisor provided a submission after the hearing which addressed the Tribunal's concerns in this regard. In these circumstances, it cannot be said that the Tribunal denied the applicant procedural fairness by not giving him a sufficient opportunity to provide evidence in support of his claim. For those reasons also, the third ground cannot succeed. 6 The fourth ground in the draft notice of appeal is as follows: The appellant claims that he was denied natural justice and procedural fairness when he was denied adjournment in the Federal Circuit Court on the assumption that the appellant has no grounds for his case. The applicant claims that he was denied natural justice and procedural fairness when he was denied an adjournment in the Federal Circuit Court on the assumption that the applicant had no grounds for his case. This ground contends that the Federal Circuit Court denied the applicant procedural fairness by refusing him an adjournment of the hearing on 15 May 2015. The Federal Circuit Court's reasons for decision reveal that the applicant provided a note at the show cause hearing on 15 May 2015 stating that he wished to seek an adjournment. The Federal Circuit Court declined to grant the adjournment on the basis that there was no utility in doing so because the application was "clearly doomed to failure" and that granting him the adjournment would "only increase the costs of the parties and utilise limited Court time". The applicant's grounds before the Federal Circuit Court had been: 1. The Tribunal was in breach of s424A of the Migration Act 1958. Particular: The Tribunal failed to disclose a number of information that it obtained and used to affirm the decision under review. For example the list of events that were referred to, in the decision record, obtained from the Departmental record and interview sessions. The Tribunal did not put all of those information to the applicant in a way that the applicant could understand would be the reason or part of the reasons to affirm the decision under review. Particular: The Tribunal found that the applicant's persecution were not based on a convention ground. It failed to understand the applicant fell within the meaning of a particular social group, "Bangladesh men who were harmed because of personal reasons using political instruments". The Federal Circuit Court addressed the applicant's grounds at [4]-[8] of its reasons: 4. This is a case where the applicant's representative forwarded to the Tribunal the applicant's protection visa application together with the applicant's written statement and a copy of the delegate's decision. It is in those circumstances that that information is exempted from the procedural requirements as identified by s.424A(3)(ba) – (b). I accept the first respondent's submission that there is no substance in relation to the first ground in the application. 5. It was open to the Tribunal to take into account the applicant's statement and interview at the time of entry. Relevantly, in relation to the findings at paras.22, 24 and 26, they are not matters that comprise information that the Tribunal considers would be the reason or part of a reason for affirming the decision that's under review, within s.424A(1)(a). 6. I accept the respondent's submissions that this is not a case where there was an obligation to give any written letter under s.424A in respect of the findings referred to above, which did not contain in their terms of rejection denial or undermining of the applicant's claims to be a person to whom Australia owed protection obligations. I also accept the respondent's submission that s.424A was not engaged in this case by reason of being matters that merely tend to reveal inconsistency in the applicant's evidence. 7. To the extent relevant, I accept the first respondent's submission that the Tribunal complied with s.424AA to the extent that it was obliged to do so. Ground 1 does not identify any jurisdictional error. Ground 2 alleges that the Tribunal failed to take into account an essential integer of the applicant's claim. It is clear that that part of the applicant's claim identified at Court Book 29-30 was taken into account by the Tribunal in the finding at para.19 and that the Tribunal made further adverse findings that clearly subsumed this integer within paras.25, 26, 28 and 29. 8. To the extent that the applicant asserts that he advanced a claim by reason of membership of a particular social group, this was not raised by the material or evidence before the Tribunal and it was not a matter that arose clearly from the material before the Tribunal. The Tribunal is not required to engage in constructive or creative activity in respect of a possible claim. There is no substance in relation to ground 2 of the amended application and it fails to disclose an arguable jurisdictional error. There is no error in the finding by the Federal Circuit Court that there was no substance to either of the applicant's grounds. It was open to the Federal Circuit Court to decline to grant the adjournment which the applicant had sought and to determine the application having regard to the efficient and proper use of the Court's resources and the prejudice that would flow to either party. Accordingly, the fourth ground of the draft notice of appeal cannot succeed. In these circumstances, it cannot be said that the judgment of the Federal Circuit Court is attended with sufficient doubt to warrant its reconsideration. 7 The applicant, however, has provided some written submissions in support of his application for leave to appeal and has supplemented them with oral submissions and statements this morning at the hearing. What was said this morning is substantially to the same effect as is found in his written submission. The additional submissions were directed to the merits of his claim which was before the Tribunal to the extent that what was said orally and what was in the written submissions did not address the matters I have dealt with above, namely the legal grounds of the draft notice of appeal and for leave to appeal to be granted. The task of this Court on appeal, however, is to determine whether the judgment of the Federal Circuit Court was affected by legal error and not to reconsider the applicant's case on the merits more generally: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2. The applicant's additional submissions cannot assist this Court to determine whether leave to appeal should be granted to the extent that the submissions seek to have the Court reconsider the merits of his claim. 8 The main contention of the applicant's written and oral submissions was that the Federal Circuit Court should have granted the applicant the adjournment which he had sought at the show cause hearing on 15 May 2015 because he was not prepared for the hearing and was not aware that it would be the final determination of his case. The applicant also contended that the Federal Circuit Court did not give him an opportunity to consult a solicitor to receive assistance in preparing an amended application for judicial review. The procedural history of the matter, however, shows a different story. It shows that the applicant had about six months to prepare his case and to obtain legal advice. His application for judicial review was filed on 18 December 2014. The Minister filed and served a response to that application on 30 December 2014. On 5 February 2015, Registrar Morgan made directions for the parties to file and serve materials and set the matter down for hearing pursuant to r 44.12 on 27 February 2015. The day before the review hearing, namely on 26 February 2015, the applicant filed and served an amended application. On 11 March 2015 the hearing of the matter was administratively adjourned to 20 March 2015. On 16 March 2015 the hearing was further administratively adjourned to 15 May 2015. At the hearing on 15 May 2015 the applicant was invited to make oral submissions in support of the grounds of his amended application. After the hearing his Honour dismissed the application giving ex tempore reasons for judgment. In these circumstances, and particularly having regard to the chronology of events, it cannot be said that the applicant did not have sufficient time to prepare his case. This conclusion is reinforced by the fact that the applicant was permitted to, and did, submit an amended application for judicial review and that he was permitted to rely on that amended application at the hearing on 15 May 2015. The applicant, in my view, had ample time to engage a lawyer to assist him to prepare an application prior to the hearing. There was no other obligation on the Court to ensure that the applicant had consulted a lawyer or to ensure that he had submitted a prepared application. 9 For these reasons, the application will be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 14 August 2015