SZUQB v Minister for Immigration and Border Protection [2017] FCA 135

FEDERAL COURT OF AUSTRALIA

SZUQB v Minister for Immigration and Border Protection [2017] FCA 135 Appeal from: SZUQB v Minister for Immigration & Anor [2016] FCCA 2180

File number: NSD 1528 of 2016

Judge: JESSUP J

Date of judgment: 21 February 2017

Legislation: Migration Act 1958 (Cth) s 36

Cases cited: SZSHF v Minister for Immigration and Border Protection [2014] FCA 237 SZSYI v Minister for Immigration and Border Protection [2015] FCA 1276

Date of hearing: 21 February 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 17

Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent: Ms S Zaruchi of Clayton Utz

Counsel for the Second Respondent: The second respondent filed a submitting notice

ORDERS NSD 1528 of 2016

BETWEEN: SZUQB Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: JESSUP J DATE OF ORDER: 21 FEBRUARY 2017

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent in the specified sum of $4000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JESSUP J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia, given on 25 August 2016, in which an application for judicial review of a decision of the Refugee Review Tribunal, dated 6 June 2014, was dismissed. In that decision, the Tribunal had affirmed an earlier decision of the respondent Minister not to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 The appellant, a citizen of Bangladesh, arrived in Australia in November 2012 and applied for a protection visa on 12 February 2013. His grounds related substantially to what he claimed to have been his substantial political activities in the service of the Bangladesh Nationalist Party ("the BNP") in Bangladesh prior to April 2007, when he departed for the United Arab Emirates, and subsequent to January 2011, when he returned from that country. 3 The appellant's claim to have been involved with the BNP was rejected in point of fact by the Tribunal. The Tribunal did not accept that he was a BNP supporter, or that he had any kind of profile within the BNP that would have attracted the adverse attention of the Awami League or others who were opposed to the BNP in Bangladesh. Virtually, the whole of the appellant's factual case before the Tribunal was rejected. 4 The appellant, who was represented by counsel before the Federal Circuit Court, relied on one ground only, namely, that the Tribunal had fallen into jurisdictional error in not considering his application for review in accordance with s 36(2)(aa) of the Act. Under that paragraph, it is a criterion for a protection visa that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that 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. 5 In the Federal Circuit Court, counsel for the appellant identified two main contentions which were involved in the ground upon which he relied. The primary Judge set out the substance of those contentions as follows: (a) … the Tribunal did not expressly consider whether the applicant might be a BNP supporter or activist if the applicant was required to return to Bangladesh; and (b) … the Tribunal did not, or did not adequately, consider the complementary protection component of the applicant's claim as the only reference to any such consideration was in paragraph 37 of the Tribunal's reasons and the reasoning in that paragraph did not expose the chain of reasoning leading to the conclusion that s.36(2)(aa) of the Act was not satisfied in the circumstances of this case. 6 His Honour considered that it was more purposeful to take the second of those contentions first. Having given consideration to that contention, his Honour rejected it. He did so because of the view which he took that the summary incorporation of the Tribunal's findings, originally made with respect to the appellant's case under s 36(1)(a) of the Act, into its conclusion made for the purposes of para (aa) of that subsection was sufficient. That incorporation was to be found in para 37 of the Tribunal's reasons, to which his Honour referred, which read as follows: Further, and also based on the findings above, in the Tribunal's view there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this applicant's case Bangladesh, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa)…. 7 The primary judge followed the judgments of Siopis J in SZSHF v Minister for Immigration and Border Protection [2014] FCA 237 and of Gilmour J in SZSYI v Minister for Immigration and Border Protection [2015] FCA 1276, in which their Honours had, on the facts before them, held it to be sufficient for the Tribunal to dispose of a claim under s 36(2)(aa) by incorporation of, or reliance on, the factual findings which it had originally made in the context of a claim under para (a) of that subsection. His Honour took the view that the case before him could not relevantly be distinguished, and that the Tribunal's findings with respect to the matter of persecution under para (a) sufficiently closed off any further argument about the matter of significant harm under para (aa). So far as that particular aspect of the matter is concerned, nothing put by the appellant in the present case has cast any doubt upon the correctness of the approach which the primary Judge took, or the conclusion which he reached. 8 However, as mentioned above, the primary Judge had adverted to two contentions made on behalf of the appellant before him, and it was the second of these to which he gave attention in the first instance. Regrettably, his Honour never got to the stage of giving attention to the first contention, namely, that the Tribunal did not expressly consider whether the appellant might be a BNP supporter or activist if he were required to return to Bangladesh. Although not in particularly felicitous terms, the appellant has again advanced that proposition in the present appeal. Because of the omission of the primary Judge to deal with the point, it will be necessary that I do so. 9 As I have said, the basis of the appellant's failure in the Tribunal was essentially the Tribunal's refusal to believe the factual story which he presented to it. It refused to accept his evidence that he was a supporter of the BNP or had a profile in the BNP which would attract adverse attention. It refused to accept the evidence which he gave about his previous movements, specifically in relation to the period of three years, or thereabouts, during which he was in the UAE. It rejected the authenticity of documents which he provided and which were ostensibly over the hand of BNP officers. It did not accept that he was involved in the political activities, or held the political positions, in Bangladesh that he claimed to have been involved in or to have held. 10 In a paragraph which deals compendiously, yet accurately, with the Tribunal's assessment of the quality of the appellant's case, it said: The Tribunal does not accept as true that the applicant fears harm in his country and/or cannot return to his country for the reasons that he claims. It does not accept as true that he was harmed, harassed or threatened at any time in his country, as he claims for the reasons that he claims, or that there is a false case filed against him in his country or that he left Bangladesh in either 2007 or 2012 to avoid harm there, or that he was moving around in his country to avoid harm there prior to coming to Australia in 2012 as he claimed before the Tribunal. The Tribunal does not accept that there is a real chance he will suffer harm amounting to serious harm, or a real risk he will suffer significant harm, in his country if he returns there for the reasons that he claims. 11 In that paragraph, the Tribunal drew upon the findings which it made, including findings which it proceeded to articulate in the following paragraphs of its reasons, for the purposes both of para (a) and of para (aa) of s 36(2) of the Act. It appears to be the case that the Tribunal did not, in terms, consider whether the appellant might be a BNP supporter or activist, if he were required to return to Bangladesh, but it is self-evident that the Tribunal took the view, and based its conclusion under s 36(2)(aa) on the view, that there was absolutely no reason to believe that the appellant had been a BNP supporter or activist, or that there was any likelihood that he would be such a supporter or activist in the future. 12 The view I take, therefore, is that, insofar as the Tribunal's assessment of the appellant's case under s 36(2)(aa) required it to make findings of fact, including assessments as to the likelihood of the appellant's activities if he were to return to Bangladesh, the Tribunal sufficiently addressed these required questions in the comprehensive reasons which it gave. 13 Insofar as the appellant's case on appeal is a reflection of the case which was conducted on his behalf in the Federal Circuit Court, therefore, that case must be rejected. 14 The appellant had two further grounds of appeal, the first of which was that – … the [Tribunal] made an error based [sic] not agreed that the appellant was harmed, harassed or threatened or had false cases without any existing proof, and the trial [J]udge erred in endorsing this. In his outline of submissions in this case, the appellant contended that the ground involved the proposition that the Tribunal had acted without any evidence or any evidentiary proof. Although this was not a ground pursued on his behalf in the Federal Circuit Court, having read the reasons of the Tribunal, I have no hesitation in concluding that the ground is without substance. 15 The other remaining ground is that – … the trial Judge erred in considering the irrelevant consideration and assertion by the [Tribunal], particularly, the [Tribunal] rejected corroborative evidences without any investigation or any source of evidentiary proof. As explained in his outline on appeal, the appellant's point here is that a number of letters had been submitted on his behalf to the Tribunal from party men of the BNP, but the Tribunal negated them without any valid reasons and did not take into account the current volatile political situation prevailing in Bangladesh. I do not accept that the Tribunal negated these letters without any valid reasons. It did reject the authenticity of the letters, but it fully explained why it did so, and its reasons are not relevantly infected by jurisdictional error. 16 It is not clear quite what is meant by the Tribunal's failure to take into account the current volatile political situation prevailing in Bangladesh, but it is sufficient for me to say that, sitting as a court of appeal as I am, I could not hold that this submission provides any support for what must be the appellant's case here - namely, that the primary Judge erred in dismissing his application. 17 For those reasons, the judgment must be that the appeal be dismissed, with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.