BZG15 v Minister for Immigration
[2016] FCCA 2538
•27 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZG15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2538 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming complementary protection due to mental health issues and the inadequacy of mental health services in Bangladesh – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: SZGIZ v Minister for Immigration [2013] FCAFC 71 SZSRY v Minister for Immigration & Anor [2013] FCCA 1284 SZTAL v Minister for Immigration [2016] FCAFC 69 |
| Applicant: | BZG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2660 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Shelly Legal |
| Solicitors for the Respondents: | Mr M Wiese of Clayton Utz |
ORDERS
The application as amended on 30 May 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2660 of 2015
| BZG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant suffers from post traumatic stress disorder (PTSD). The issues in this case concern the question whether the Administrative Appeals Tribunal (Tribunal) fell into error when considering the complementary protection criterion in respect of the applicant’s second protection visa application, because of inadequate mental health services in Bangladesh.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Bangladesh who arrived in Australia on 7 February 1998 on a tourist visa. The applicant departed Australia in March 1998 and re-entered Australia in April 1998, lodging his first protection visa on 7 May 1998. That application was refused on 17 August 1998, and the decision was affirmed by the Tribunal (differently constituted) on 21 August 2000.[1]
[1] Court Book (CB) 124.
Pursuant to the decision in SZGIZ v Minister for Immigration[2] (SZGIZ), the applicant made a second application for a protection visa, which is the subject of these proceedings, on 5 December 2012.[3] That application was refused by the Minister’s Delegate (Delegate) on 30 June 2014.[4] The Tribunal affirmed the Delegate's decision on 26 August 2015.[5]
[2] [2013] FCAFC 71.
[3] CB 1-33.
[4] CB 118-139.
[5] CB 759-777.
The applicant commenced the current proceedings on 29 September 2015. On 30 May 2016, the applicant filed an amended application (amended application).
Protection claims
The applicant's claims were made in his protection visa application[6], submissions to the Delegate[7] and through written[8] and oral[9] submissions to the Tribunal. In summary, the applicant claims that:
a)he is a Buddhist. Bangladesh is an Islamic state where minority communities face discrimination and persecution. Reports indicate that Islamic fundamentalism is growing in Bangladesh. The applicant fears being harmed due to his minority religious background and on the basis of his imputed political opinion against Islamic political parties;
b)the army has occupied his land and allowed settlers to occupy his land in the Chittagong Hill Tracts. Minorities in that area are tortured by the army and the settlers;
c)he fears harm because he has lived in Australia for a considerable length of time and will be perceived as a wealthy person. Extortion and human rights abuses targeting wealthy people have increased in Bangladesh with the active and passive support of the government;
d)he is not sure whether there is an outstanding case against him for setting a fire which damaged a runway and aircraft in Bangladesh. The applicant's mother has told him that another incident happened at the runway in 2006, where some tires were damaged. She believes that the family home was watched by the authorities after that incident; and
e)he suffers from mental health issues for which he would not receive adequate treatment in Bangladesh.
[6] CB 25.
[7] CB 59-117, 127-135.
[8] CB 680.
[9] CB 761-763.
Tribunal decision
The Tribunal considered the applicant's claims against the complementary protection criteria set out in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[10] After assessing the totality of the applicant's evidence and claims, the Tribunal concluded that the applicant was not a credible witness.[11] The Tribunal identified various issues with the applicant's evidence, including:
a)at the hearing, the applicant told the Tribunal that he feared returning to Bangladesh because of the fire at the runway as well as the problems faced by minorities, noting that the army had taken his land in the Chittagong Hill Tracts. The Tribunal noted that the applicant's written claims did not mention his concerns regarding the land issues. Rather, the written claims referred to being perceived as wealthy, to which the applicant did not initially refer in his oral evidence;[12]
b)the Tribunal noted that the applicant had also failed to mention in his oral evidence several other claims he had previously made in writing, including that his sister was forcibly abducted and married, that he was tortured by the police and the army, that some of his family members had been killed, and that the authorities had issued a search warrant against him. In response, the applicant told the Tribunal that “some of the claims he just wrote that, and that some of them were lies and some were true”;[13]
c)the applicant gave inconsistent evidence as to whether he was, or was not, a “peace fighter”. The applicant told the Delegate in June 2014 that he was a peace fighter. He later told the Delegate that he was not in fact a peace fighter. In response to this inconsistency being raised by the Tribunal, the applicant told the Tribunal that being a peace fighter has nothing to do with his protection claims. He then told the Tribunal that the “JSS and UPDF were fighting”, and that he was kidnapped by JSS peace fighters and tortured before joining them for one and a half to two years;[14]
d)in accordance with s.424AA, the Tribunal put to the applicant information contained in the previous Tribunal decision that indicated he had returned to Bangladesh. The Tribunal suggested that this could suggest that he was not in fear of his safety. In response, the applicant told the Tribunal that the relevant passport was used by his brother, who had acquired it in addition to another, false passport that he had arranged for the applicant. The Tribunal was not persuaded by this explanation. The Tribunal noted that the applicant had told the previous Tribunal that the second passport was genuine and obtained by his brother whilst the applicant was in Singapore. His written claims indicated that both passports were false. Both accounts differed from his oral evidence to the present Tribunal.[15]
[10] CB 765 [29].
[11] CB 770 [49].
[12] CB 766 [34].
[13] CB 767 [38]-[39].
[14] CB 768 [41].
[15] CB 769 [46]-[47].
Based upon the above, the Tribunal did not accept that the applicant's core substantive claims were truthful. Specifically, the Tribunal did not accept that the applicant was of adverse interest to anyone, including the authorities, in Bangladesh.[16]
[16] CB 771 [56].
The Tribunal was prepared to accept that the applicant was a Buddhist, who had spent some time in the Chittagong Hill Tracts and left Dhaka due to some incident that may have involved a fire. The Tribunal also accepted that the applicant may suffer some discrimination in Bangladesh due to his religion. However, the Tribunal considered that the risk of violence to the applicant was remote and that these factors would not result in the applicant facing a real risk of significant harm.[17]
[17] CB 770-773 [50]-[60].
As to the applicant's claims regarding his perceived wealth, the Tribunal was not aware of any country information regarding the targeting of returnees from Australia with perceived wealth.[18]
[18] CB 773 [61]-[62].
In respect of the applicant's mental health issues, the Tribunal accepted that mental health services in Bangladesh were not adequate for the population size. However, the Tribunal found that this resulted from economic factors and was not due to the intentional mistreatment of people with mental illness. The applicant had given evidence that his mentally unwell brother had been able to access ongoing psychiatric services. The Tribunal was not satisfied that the applicant would be unable to access mental health services. It found that he would not face significant harm on this basis. Further, the Tribunal found that any harm in this regard was non-intentional and was faced by the population generally.[19]
[19] CB 773-775 [64]-[70].
Accordingly, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed.
The judicial review application
These proceedings began with a show cause application filed on 29 September 2015. That application was listed for a show cause hearing on 11 May 2016 but, as the applicant obtained legal representation and wished to amend his application to raise an arguable case for judicial review, the matter was adjourned to a final hearing on 30 September 2016. The amended application filed on 30 May 2016 raises the following grounds:
GROUND ONE:
The Tribunal has applied the incorrect test at law.
Particulars:
a. By directing itself that, at paragraph [69] of the decision, the Tribunal considers “the country information indicates that any failure in providing the applicant with mental health care treatment or support will be due to the size and development of the Bangladeshi economy rather than any intentional act or omission, and therefore it is not cruel or inhuman treatment or punishment as defined by the Act”, the Tribunal has misdirected itself in regards to the correct test at law;
b. The misdirection does not conform with a fair reading of the express terms of the statute, effectively reading out of the statute the word “omission”:
c. In directing itself only to the intentional acts of service providers in Bangladesh and not to include the act of the Australian Government in exercising its powers to return an applicant to their home country.
GROUND TWO:
The Tribunal has applied the incorrect test at law.
Particulars:
a. By directing itself that, at paragraph [69] of the decision, that the Tribunal “…finds that the risk of harm due to inadequate health care services, especially the mental health care services in Bangladesh in general, and therefore is not a real risk that the applicant will suffer significant harm in Bangladesh, in accordance with s36(2B)(c)”, the Tribunal has misdirected itself as to the correct test given that the Applicant is suffering from a mental illness.
GROUND THREE
The Tribunal erred by failing to consider whether Australia had protection obligations under section 36(2)(a) of the Migration Act 1958 (Cth).
Particulars
i. The Applicant had been refused a protection visa under s.36(2)(a) of the Migration Act 1958.
ii. The Applicant then lodged a new application for a protection visa relying on s36(2)(aa) of the Migration Act 1958.
iii. The Tribunal held that it was precluded from considering the grounds in s36(2)(a), and did not do so.
iv. The Tribunal misinterpreted s48A, which operates only to determine whether an application for a protection visa is valid, not what the Tribunal may or may not consider when making its determination.
Ground 3 was formally abandoned by the applicant at the trial of the matter on 30 September 2016. The application is supported by an affidavit made by Renae Dunstan on 29 September 2016, to which is annexed transcripts of the two hearings conducted by the Tribunal on 18 August 2015 and on 15 July 2015. I received that affidavit and transcripts subject to relevance. As matters transpired, the transcripts are of marginal, if any, relevance.
I also have before me as evidence the court book filed on 30 November 2015.
Both the applicant and the Minister made written as well as oral submissions.
Consideration
Ground 1- did the Tribunal apply the incorrect test at law in relation to the availability of mental health care in Bangladesh?
The applicant contends that the Tribunal erred in finding that whatever harm the applicant might suffer in Bangladesh due to inadequate mental health services would not be intentionally inflicted and hence he would not qualify for complementary protection.
The short answer to that contention is that the ground cannot succeed in the face of the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration[20] (SZTAL).
[20] [2016] FCAFC 69.
In SZTAL, Kenny and Nicholas JJ jointly held, at [53], that “intention with respect to result means to have it in mind to achieve the result”. Their Honours found, at [59] that “the natural and ordinary meaning of intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”.
Relevantly, the Tribunal found that any failure to provide the applicant with mental health care treatment or support will be due to the size and development of the Bangladeshi economy rather than any intentional act or omission. Further, the risk of harm due to inadequate health care services, especially mental health care services in Bangladesh, is faced by the population in general.
In light of SZTAL and the Tribunal's findings set out above, the complaint by the applicant that the Tribunal misdirected itself by “reading out of the statute the word ‘omission’” is without merit. Further, the question of intentional acts or omissions is a reference to that conduct in the home country and not acts or omissions of the Australian Government.
The applicant seeks to avoid this conclusion by contending that the Tribunal engaged in a “false syllogism”. The applicant submits that, rather than assessing whether the “Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia” as a consequence of facing the withdrawal of these mental health services, the Tribunal has been diverted into an analysis of why he would face harm rather than whether he would.
However, that contention cannot succeed in the face of the decision of the Federal Court in SZRSN v Minister for Immigration.[21]
[21] [2014] FCA 527.
The first ground fails.
Ground 2 – did the Tribunal err in considering s.36(2B)(c) of the Migration Act?
I accept the Minister’s submissions in relation to this ground.
Pursuant to ss.36(2A) and (2B) of the Migration Act:
(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.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
…
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The Tribunal found that inadequate health care services, especially mental health care services in Bangladesh, is faced by the population in general. The Tribunal considered the applicant's ability to access mental health care services but was not satisfied that the applicant would be unable to do so, particularly given the evidence that his brother had had ongoing psychiatric care. Relevantly, the Tribunal considered, albeit as an additional matter, the application of s.36(2B)(c) of the Migration Act.[22]
[22] CB 774 [69].
For the purposes of s.36(2B)(c) of the Migration Act, a necessary element is that an applicant will suffer significant harm. That term, as defined in s.36(2A) of the Migration Act, requires an “intentional” act.[23] It follows for the reasons outlined in Ground 1 above, that Ground 2 must fail.
[23] See, for example, the definition of “degrading treatment or punishment” and “cruel or inhuman treatment or punishment” in s.5 of the Migration Act.
The applicant placed some reliance on my decision in SZSRY v Minister for Immigration & Anor[24] (SZSRY). The Minister submits, and I accept, that that case is inapt and distinguishable. In contradistinction to SZSRY, the Tribunal in this case considered s.36(2B)(c) of the Migration Act.[25]
[24] [2013] FCCA 1284.
[25] CB 774 [69].
In addition to that case, I was taken to a considerable range of authority concerning the interpretation of s.36(2B)(c) of the Migration Act. While the range of authority establishes that the section is open to differing interpretations in particular respects, and there may be particular circumstances about which reasonable minds might differ in considering whether the risk posed is one suffered by the community of a country generally, there can, in my view, be little doubt that the consequence of inadequately funded health services in Bangladesh is a general issue affecting the entire population. I see no error in the Tribunal’s approach. In any event, the Tribunal’s consideration was not strictly necessary, once it had determined that the harm to which the applicant was exposed would not be intentionally inflicted.
Conclusion
I conclude that the applicant is unable to establish that the decision of the Tribunal is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 27 October 2016
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