MZZKY v Minister for Immigration

[2013] FCCA 1778

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZKY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1778

Catchwords:
MIGRATION – Application for a review of a decision of the Refugee Review Tribunal – Applicant’s request for an adjournment of proceedings refused – Tribunal rejected Applicant’s claims because it was not satisfied that the Applicant was a credible witness – Tribunal’s findings were open to it – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Waterford v Commonwealth (1987) 163 CLR 54

Applicant: MZZKY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 665 of 2013

Judgment of: Judge Whelan

Hearing date: 23 October 2013

Date of Last Submission: 23 October 2013

Delivered at: Melbourne

Delivered on: 23 October 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.

2. The Application by the Applicant for an adjournment of these proceedings be dismissed.

3. The Application filed by the Applicant on 16 May 2013 be dismissed.

4. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 665 of 2013

MZZKY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 April 2013. In that decision, the Tribunal affirmed a decision of the delegate to refuse the Applicant a protection visa. The Applicant now seeks, according to his application:

   An order that the decision of the tribunal or Minister be quashed.

   A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.

   A declaration that the decision of the tribunal was not made in accordance with law, by reason of the ground/s of this application.

   An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the decision of the tribunal.

   Costs.[1]

   [1] Application filed by Applicant on 16 May 2013 at p.2.

Background

1. The Applicant is a citizen of Bangladesh who arrived in Australia on 15 February 2006 on a student visa. The Applicant applied for the protection visa on 30 May 2011. The delegate refused the visa on 24 November 2011. The Applicant then applied to the Tribunal for a review on 17 December 2011. The Tribunal conducted a hearing on 24 August 2013 and refused the application on 17 April 2013. In written submissions, the First Respondent has outlined the claims made by the Applicant and the way they were dealt with by the Tribunal, and I intend to read that into the transcript. 

2. In a written statement accompanying his application, the Applicant claimed to fear harm from political and religious extremists due to his religious and political beliefs. Specifically, the Applicant feared the Bangladesh National Party (“the BNP”), the Jamaat-E-Islamia (“the JEI”) and the Jagrata Muslim Bangladesh (“the JMB”) because he had converted from Hinduism to Islam and subsequently to Christianity. 

3. The Applicant’s father had a prominent profile and was able to secure employment for the Applicant at the Barapukuria Coal Mining Company in March 2001. 

4. While at the company, the Applicant claimed that:

   ·He converted to Islam; 

   ·Faced pressure and discrimination;

   ·Was the subject of an investigation; and

   ·His employment was terminated on 13 April 2001 because he had disobeyed Islam. 

5. After obtaining a studentship to Norway, the Applicant attended the Bethel Pentecostal Church and became a Christian in June 2004. As a consequence, the Applicant received threats from other Bangladeshis who had learned of his Christian conversion and his father disowned him. 

6. The Applicant returned to Bangladesh on 1 September 2005, and started a Christian ministry which caused a group of Muslims to gather and shout in front of the family apartment. As a result, the Applicant and his family went to India and discussed his situation. His father constantly received threats and told the Applicant that he was in grave danger. The Applicant returned again to Bangladesh on 9 November 2005 and only left home in disguise and when necessary. The Applicant claimed the Bangladesh authorities could not provide him with effective State protection. The Applicant feared serious harm from the police. The Applicant could not reasonably relocate within Bangladesh. 

7. At the Tribunal hearing, the Applicant claimed further that:

   ·He felt the pressure of being a Hindu in Bangladesh; 

   ·He had been involved in the ‘Army League’; and

   ·His father had been the subject of false charges. 

   The Applicant also claimed to fear persecution on the basis of his sexual orientation and gender identity.

8. The Tribunal rejected the Applicant’s claims essentially on the basis of adverse credibility findings and its reliance on accepted independent country information that either undermined or did not support his claims. The Tribunal did not find the Applicant to be a credible witness and considered it inappropriate to give him the benefit of the doubt. It identified discrepancies in his evidence and the independent country information that cast doubt on his claims and overall credibility as a witness.

9. Specifically, the Tribunal relied on the Applicant’s failure to seek protection while in Norway between 2002 and 2005 and found his explanations for not doing so were less than persuasive. It also found that his credibility was further undermined by his five-year delay in seeking protection in Australia and noted his conduct which contributed to that delay. The Tribunal also placed weight on independent country information that failed to support the Applicant’s claim to fear harm for reasons of his imputed political opinion and religious beliefs and gave less weight to the independent country information cited by the Applicant. 

10. The Tribunal also rejected the Applicant’s claims and evidence about the ‘Army League’ and false charges against the Applicant’s father, having regard to:

    ·The absence of independent country information,

    ·Inconsistencies in the Applicant’s evidence; and

    ·Concerns about his credibility.

    The Tribunal also did not accept the Applicant’s evidence that he and his family suffered harm or adverse treatment because of their Hindu religion, nor did it accept he had been a victim of harassment or that his claimed bullying at school constituted serious harm.

11. The Tribunal did not accept that the Applicant’s employment was terminated because he was a Hindu or that he was investigated by a works committee because of his religion. It also did not accept the claims regarding his alleged forced conversion to Islam. In making its findings, the Tribunal relied on inconsistencies in documents submitted by the Applicant and placed little weight on his evidence. The Tribunal did not find the Applicant and his claims were credible in relation to his alleged activities as a Christian when he returned to Bangladesh in 2005 and rejected the whole of his claims in this regard. 

12. The Tribunal noted concerns with the Applicant’s evidence and gave it little weight. The Tribunal did not accept that the Applicant’s family in Bangladesh had been subjected to harassment and threats or that it had been ostracised or that the Applicant’s sister remained unmarried due to his profile. The Tribunal rejected as not credible, the Applicant’s claims to be confused about his sexual orientation and gender identity and noted that he had not previously raised these claims. The Tribunal did not accept the Applicant’s explanation for the lateness of his claims and also rejected that he faced a well-founded fear of persecution for reasons of his membership of a particular social group based on his sexuality or gender identity. 

13. In support of its findings, the Tribunal relied on identified inconsistencies in the Applicant’s evidence and independent country information which undermined his claims of harm. While accepting that membership of a Hindu family could constitute a particular social group in Bangladesh, the Tribunal did not accept that the Applicant faced a real chance of persecution for this reason. Given its previous adverse credibility findings, the Tribunal did not accept that the Applicant faced a real chance of persecution for reasons of his membership of a particular social group, being his family or as his father’s son.

14. For all these reasons, the Tribunal did not accept that the Applicant had a well-founded fear of persecution on the basis of his imputed political opinion, his previous Hindu beliefs or as a Christian. Considered individually and cumulatively, the Tribunal did not accept that the Applicant had a well-founded fear of persecution for any Convention reason.

15. In considering the complementary protection provisions in s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”), the Tribunal noted that it did not find the Applicant to be a credible witness and did not accept his claims as plausible. In making its complementary protection findings, the Tribunal had regard to:

    ·The independent country information; 

    ·The Applicant’s failure to apply for protection in Norway; 

    ·The Applicant’s immigration history in Australia and five-year delay in applying for protection; 

    ·The Applicant’s psychological reports;  and

    ·The inconsistencies in the Applicant’s claims and evidence. 

    Accordingly, the Tribunal was not satisfied that the Applicant satisfied the complementary protection provisions.

Grounds

1. The Applicant cited two grounds in his application:

   1.  The decision of the Refugee Review Tribunal is affected by jurisdictional error.

   2.  I am currently awaiting legal advice from the Asylum Seeker Resource Centre in relation to this application and any further available grounds.[2]

   [2] Application filed by the Applicant on 16 May 2013 at p.2.

2. That application was lodged with the Court on 16 May 2013. On 24 July 2013, orders were made by Registrar Allaway setting this matter down for hearing on today’s date before me. At the hearing this morning, the Applicant sought an adjournment on the basis that he needed to seek legal advice. That adjournment was refused on the basis that the Applicant had had since 16 May 2013, to obtain such advice. The Applicant indicated that he was not in a position to be able to address the Court in relation to the grounds of his application. 

3. The Court has taken the view that this is the Applicant’s application. It is up to the Applicant to pursue it. If the Applicant is unable to pursue it then that is a matter for him. The matter has been duly listed by the Court. The Applicant has been given an appropriate opportunity to provide the Court with information upon which it could make findings.  There were directions issued on 24 July 2013, which set out the actions that needed to be taken in order for this matter to be progressed and the Applicant has chosen instead to attend the hearing this morning and seek an adjournment. 

4. I am not satisfied that the Applicant has raised any credible reasons as to why the Court should do other than proceed on the basis of the material which is before it. 

The First Respondent’s submissions

1. The First Respondent, in its submissions, says that the Tribunal’s finding that the Applicant was not credible and his essential claims were untrue, is a finding of fact which is open for the Tribunal to make.[3] The Tribunal’s findings were open to it for the reasons it gives. The Court cannot review the merits of the Tribunal decision.[4] 

   [3] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.

   [4] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.

2. There is no error of law in the Tribunal making a wrong finding of fact,[5] if it is suggested that that is what has occurred. The application contains no grounds and no written submissions have been received and the application therefore raises no case to answer. 

   [5] Waterford v Commonwealth (1987) 163 CLR 54.

Conclusions

1. I have read the contents of the Court Book. I have read the contents of the Tribunal’s decision. The Tribunal made findings of fact. I am satisfied that those findings of fact were not based on ‘no evidence’ and were not irrational or inconsistent with the evidence that was before the Tribunal.

2. The findings of fact made by the Tribunal, as the First Respondent has pointed out, are matters for the Tribunal. In a judicial review, the Court is not in a position to review the merits of the Tribunal’s decision nor to review its findings of fact generally, unless it can be said that there is no basis for those findings. The Tribunal’s decision appears to me to have been rational. If there are any wrong findings of fact, and none have been pointed out, then that does not necessarily constitute an error of law for the purposes of a jurisdictional review.

3. On that basis, I can find no case for the Court to interfere with the decision that was made by the Tribunal and the application is therefore dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 31 October 2013