FEDERAL COURT OF AUSTRALIA SZUAT v Minister for Immigration and Border Protection [2016] FCA 155 Appeal from: SZUAT v Minister for Immigration & Border Protection [2015] FCCA 2510 File number: NSD 1162 of 2015 Judge: FARRELL J Date of judgment: 24 February 2016 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – application for protection visa – consideration of ss 36(2) and 424A of the Migration Act 1985 (Cth) Legislation: Federal Court Rules 2011 (Cth) sch 3 Migration Act 1958 (Cth) ss 36(2), 424A Cases cited: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZUAT v Minister for Immigration & Border Protection [2015] FCCA 2510 Date of hearing: 24 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Appellants: The appellants appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr M Glavac of Clayton Utz, Lawyers Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS NSD 1162 of 2015 BETWEEN: SZUAT First Appellant SZUAU Second Appellant SZUAV Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FARRELL J DATE OF ORDER: 24 February 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The first and second appellants pay the first respondent's costs in a lump sum amount of $3,043. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 7 September 2015: SZUAT v Minister for Immigration & Border Protection [2015] FCCA 2510 ("SZUAT"). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 26 February 2014. The Tribunal affirmed a decision of a delegate of the Minister made on 4 April 2013 to refuse the grant of Protection (Class XA) visas to the appellants. Background 2 The appellants are citizens of Bangladesh. They are the first appellant (who I will refer to as the "appellant") and his wife and daughter. They arrived in Australia on 5 July 2012 on Tourist (TU 676) visas which expired on 5 August 2012. On 3 August 2012, the appellant lodged a protection visa application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Affairs). His wife and daughter lodged applications as members of his family unit and did not advance any claims for protection of their own. 3 In his visa application, the appellant claimed to fear persecution from the Awami League and its supporters and cadres in Bangladesh because of his long running affiliation with the Bangladesh National Party ("BNP"). The appellant claimed that: He joined the student wing of the BNP in 1982 and failed his HSC exams as a result of his active involvement in student politics. He then joined the local ward of the BNP. He worked for a BNP candidate in the 1991 elections. In 1992 he became an executive member of the Gaodia Union of the BNP. He worked for a BNP candidate, Mr Sinha, during the 1996 elections. Although Mr Sinha won his seat, the Awami League won a majority of seats and formed government. Following that victory, Awami League cadres attended his home to ask after him. The cadres looted and ransacked the house and insulted his mother. As a result, she went into shock and died. He claims that following the 1996 elections he was beaten on several occasions by Awami "goons", including on 12 February 1997 at the Mawa Bazzar. He was left unconscious on the roadside. Bystanders took him to a nearby clinic where he stayed for 3 days. On 23 July 2000, his hotel was attacked and ransacked by Awami League activists. At this time, he was part of a political movement being led by Mr Hasina and Mr Sinha, including going door to door to canvass votes. In October 2001, the BNP won a landslide victory and formed government. The appellant was well accepted by people in his region and the Awami League activists were jealous of his popularity. He became one of the leading activists for the party and, in 2002, he became an executive member of the Lohajong Thana BNP and a threat to the Awami League. He again supported Mr Sinha in the 2008 election, but Mr Sinha lost and the Awami League was returned to government. Since then the "country became a living hell" and he has been attacked on a number of occasions. When his life became at serious risk, he arranged a visa and came to Australia. He fears that he will be killed by Awami League "goons" and arrested by police if he returns to Bangladesh. 4 The appellant attended an interview with a delegate of the Minister on 27 March 2013. At the interview, he also claimed that in February 2012 he was threatened and bullied by Awami League supporters to donate money to them. He further claimed that false charges had been initiated against him for a death which had occurred at his hotel the week after he had left for Australia. 5 On 4 April 2013, the delegate refused to grant the appellant a Protection (Class XA) visa because he was not satisfied that he was a person to whom Australia owed protection obligations under the Migration Act 1958 (Cth). The delegate therefore also refused to grant the wife and daughter protection visas because their applications relied on the success of the appellant's application. 6 The appellants applied to the Tribunal for review of the delegate's decision on 8 May 2013. On 27 November 2013, the appellant and his wife appeared before the Tribunal to give evidence and present arguments. On 2 December 2013 and 5 February 2014 the Tribunal by way of letter invited the appellant to comment on and respond to inconsistencies between the evidence given by the appellant and his wife at the Tribunal hearing and the answers they gave at the interview with the delegate,, this being information that the Tribunal considered would be the reason or part of the reason for affirming the delegate's decision: s 424A of the Migration Act. The appellant responded by letter dated 23 February 2014. Tribunal decision 7 On 26 February 2014, the Tribunal affirmed the delegate's decision to refuse to grant the appellants Protection (Class XA) visas. The Tribunal set out its reasons in a Statement of Decision and Reasons ("Decision Record"). 8 The Tribunal determined that the appellant was not a credible witness having regard to the various inconsistencies between his written statement, the evidence which he gave at the interview with the delegate and his evidence at the Tribunal hearing. 9 Seven examples cited by the Tribunal included: (1) inconsistencies in the appellant's evidence regarding the length and extent of his involvement with the BNP. The appellant could not recall the four main principles of the BNP or what the BNP flag represented. He also gave incorrect evidence regarding the annual fee for membership of the BNP. Further, he claimed to have campaigned on behalf of Mr Sinha in the 1996 and 2001 Parliamentary elections but he could not correctly recall the results of these elections or which constituency Mr Sinha had represented. The Tribunal also questioned the genuineness of a letter provided by the appellant purportedly by a Secretary of a branch within the BNP: Decision Record at [10] - [14] and [28]; (2) inconsistencies in the appellant's evidence regarding the number, timing and nature of the alleged attacks by the Awami League on the appellant and his mother. The appellant and his wife also gave different accounts of the alleged "1997 attack": Decision Record at [15]-[16]; (3) inconsistencies in the evidence given by the appellant and his wife in respect of his claim that he had been the victim of extortion by the Awami League: Decision Record at [17]; (4) the appellant claimed to have been the victim of threats and attacks by members of the Awami League since 1997 however he did not seek asylum in either Spain or Italy when he had visited those countries in late 2011. Instead, he voluntarily returned to Bangladesh. Further, as at April 2012, the appellant held visas to both Japan and Thailand but chose not to leave Bangladesh on either of them but instead applied for an Australian visa on 29 May 2012: Decision Record at [18]-[20]; (5) inconsistencies in the appellant's evidence in respect of his claim that members of the Awami League had attended his home (ransacking and looting it) and insulted his mother. The appellant had been unable to recall when this had occurred (in 1996 or 2002) or the effect it had had on his mother who died in 2005: Decision Record at [21]-[22]; (6) inconsistencies between the appellant's evidence at the interview with the delegate and the evidence which he gave at the Tribunal hearing regarding the reasons for his delay in leaving for Australia. He had been granted a visa to Australia on 12 June 2013 yet did not leave Bangladesh until 5 July 2013: Decision Record at [23]; and (7) the implausibility of the appellant's claim that he was facing false charges for a murder alleged to have occurred on 11 July 2012 at a hotel owned by him - 5 days after he had left for Australia. The Tribunal noted that he had made no reference to these charges in his application for a protection visa and placed little weight on a newspaper report and other documents provided by the appellant in support of this claim. Decision Record at [24] - [25] and [29]. 10 The Tribunal found that the appellants either did not provide an explanation for the inconsistencies or the Tribunal was not persuaded by their explanation: see Decision Record at [10], [16], [17] and [23]. 11 Having rejected the appellant 's claims, the Tribunal was not satisfied that he was owed a protection obligation, either as a refugee under s 36(2)(a) or as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act: Decision Record at [30] and [32]. On that basis, the applications of his wife and daughter were also unsuccessful: Decision Record at [33]-[34]. Federal Circuit Court decision 12 The appellants applied to the Federal Circuit Court for judicial review of the Tribunal's decision on 18 March 2014. The appeal was heard on 7 September 2015. The primary judge delivered an ex tempore judgment that day. 13 The application was based on the following grounds (as written): 1. The Tribunal denied the procedural fairness at the time of the assessment of applicant claim because the tribunal was biased. 2. The Refugee Review Tribunal's decision was unjust and was made without taking into account the fully gravity of the applicant's circumstances of the decision. 14 The appellant did not file any written submissions, but made oral submissions at the hearing: 15 In relation to ground one, the primary judge noted that an allegation of actual bias must be distinctly made and clearly proved (relying on Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17) and that it is a rare case in which actual bias can be demonstrated from the Tribunal's reasons for decision alone (relying on SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]). The primary judge found that there was nothing in the circumstances of the case to support a contention of bias in the sense of a state of prejudgment so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: SZUAT at [31]-[32]. 16 The primary judge asked the appellant what had led him to suggest that the Tribunal was biased. He said that he took issue with the Tribunal's conclusions in relation to the documents he had submitted: In dismissing this ground, the primary judge held that the Tribunal's finding that the letter of support from a secretary of the BNP had been fabricated was not indicative of prejudgment constituting actual bias. In reaching this conclusion, the primary judge noted that this finding had been based on the inconsistency between the contents of the letter and the appellant's evidence at the hearing concerning his hotel, as well as independent country information which had been put to the appellant: SZUAT at [32]-[33]. 17 The primary judge found that the Tribunal had properly considered the other supporting documents provided by the appellant, noting that it had specifically outlined the inadequacies of those documents. In light of those inadequacies, the independent country information and its concerns regarding the late provision of the documents, the Tribunal's finding that the documents could not overcome its credibility concerns was also not indicative of prejudgment such as to constitute actual bias: SZUAT at [34]. 18 The primary found that there was also nothing in the evidence before the Court to establish apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28. Nor did the circumstances impose an obligation on the Tribunal to make inquiries to verify the appellant's claims: SZUAT at [36] - [37]. 19 The appellant was unable to elaborate on what he meant in his second ground of appeal. In addressing this ground, the primary judge noted that the Tribunal had considered all of the appellant's claims and that the credibility findings which it made were open to it on the material before it and for the reasons which it gave: SZUAT at [39]-[40]. 20 Having failed to establish jurisdictional error on the part of the Tribunal, the primary judge dismissed the application: SZUAT at [41]. Appeal to this Court 21 The appellants filed a notice of appeal from the Federal Circuit Court's decision 28 September 2015. 22 The appellants have one ground of appeal (as written): 1. That the Federal Circuit of Australia made an error in finding that there is no jurisdictional error. 23 The appellants did not provide any written submissions in support of their appeal. 24 The Minister filed written submissions and appeared by his representative at the hearing. The Minister submitted that the appeal should be dismissed as the ground of appeal is "wholly unparticularised and incapable of proper response". 25 The appellant appeared at the hearing with the assistance of an interpreter. The appellant was asked to explain what he meant by the ground of appeal but he was unable to elaborate on it. He offered no other comment. 26 I accept the Minister's submission. Having considered the Decision Record and the primary judge's reasons, I perceive no jurisdictional error by the Tribunal or appellable error by the primary judge. I will therefore dismiss the appeal with costs. 27 The Minister relied on an affidavit of Zac Chami sworn on 16 February 2016 in claiming a lump sum award of costs of $3,043. Based on Mr Chami's 15 years of experience in matters of this kind, he estimated that this amount is the mid-point of the amounts the Minister might expect to recover for professional costs upon a taxation of costs. Item 15.1(d) of Schedule 3 to the Federal Court Rules 2011 (Cth) indicates that an amount of $6,439 might be claimed in a matter of this kind. I will order that the first and second appellants pay the Minister's costs in a lump sum of $3,043. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate: Dated: 25 February 2016