SZBEG v Minister for Immigration

[2015] FCCA 2771

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZBEG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2771

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – complementary protection – bias – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 476

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35

Applicant: SZBEG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1494 of 2015

Judgment of: Judge Street

Hearing date: 12 October 2015

Date of Last Submission: 12 October 2015

Delivered at: Sydney

Delivered on: 12 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms E. Warner-Knight
Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1494 of 2015

SZBEG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 6 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Bangladesh. The applicant arrived in Australia on a Subclass TU 676 Visitor visa and applied for protection on 19 July 2001. That protection application was refused on 22 April 2002 and affirmed by a review Tribunal on 17 July 2002.

2. On 11 August 2003, the applicant sought judicial review, and on 31 March 2005, the matter was remitted for further reconsideration by the Refugee Review Tribunal.  On 30 August 2005, a differently constituted Refugee Review Tribunal affirmed the decision to refuse the applicant a protection visa.  Consistent with the decision SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35, a further application was lodged by the applicant for protection on the grounds of complementary protection on 23 September 2013 under s.36(2)(aa). The delegate identified the applicant as raising a claim arising from a concern as to desertion from his ship whereby he feared significant harm and by reason of being a member of a minority religious community called Ahmadi. The delegate did not find the applicant to be a credible witness and found that there were not substantial grounds for believing that the applicant faced a real risk of significant harm if returned to Bangladesh by reason of his claims.

3. The applicant was invited to appear before the Tribunal by letter dated 9 December 2014 and the applicant appeared before the Tribunal on 26 February 2015 to give evidence and present arguments and was assisted by an interpreter.  At the end of the hearing, the Tribunal provided a further opportunity for the applicant to provide additional information until 14 March 2015 but no further information was provided. 

4. The grounds of the application are as follows:

   1. The Second Respondent made a decision which was unreasonable and capricious.

   a. The Second Respondent stated at para 34 that based on information I accept there is a possibility that the applicant might be charged with the offence of ship desertion if he returned to Bangladesh and if convicted, that he might be fined and his discharge certificate (if he still has one) cancelled. The Tribunal made the above comment without any authorities and on the basis of the assumption.

   2. The second respondent made an error not considering the applicant as a member of Ahmadia Community.

5. In relation to ground 1(a) it is clear that the Tribunal had reference to country information that identified that deserters from ships had not been the subject of penal action and it was in those circumstances the Tribunal made an adverse finding in para.34 as follows:

   34. Based on the information I accept there is a possibility that the Applicant might be charged with the offence of ship desertion if he were to return to Bangladesh and, if convicted, that he might be fined and his Discharge Certificate (if he still has one) cancelled.  I am not satisfied that in his circumstances this could reasonably be seen as rising to the level of significant harm, as provided in s.36(2A) and further defined in s.5(1) of the Act. 

6. In the country information identified, there was a logical basis for the adverse finding in para.34 and it cannot be said to lack an evident and intelligible justification.  In these circumstances the finding in para.34 cannot be said to be unreasonable.

7. Insofar as the reference to capricious is intended to convey a suggestion of bias, such an allegation must be clearly made and strictly proven.  No such claim of bias is proven.  Adverse findings are not a basis upon which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, impartial mind to the determination of the matter on its merits.  There is no substance in the contention that the finding in para.34 is unreasonable or capricious.  Ground 1 fails to make out any jurisdictional error.

8. In relation to ground 2, it is suggested that the Tribunal failed to consider the applicant as a member of the Ahmadi community.  That proposition is clearly inconsistent with the identification by the Tribunal of the applicant’s claim to membership of that community.  That claim was the subject of an adverse finding by the earlier Tribunal by reason of matters identified in para.16, which were put to the applicant.  There is also information provided from a particular person who held an office in the Ahmadiyya Muslim Association of Australia Inc that the applicant was not an Ahmadi and that the letters purportedly written by the Ahmadi community in Bangladesh were forgeries.

9. This information was put to the applicant and its significance explained and an opportunity provided to the applicant to comment or respond to the information consistent with s.424AA. It was in these circumstances that the Tribunal found but did not accept the applicant is or ever was a member of the Ahmadi faith or that the letters submitted by the applicant were genuine. Relevantly, the Tribunal found:

   35. Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act because of his religion or because he deserted ship in Australia.  Specifically, I am not satisfied  there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.  He has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in his case.

   36. There is no suggestion that the Applicant 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).

10. It is clear that the Tribunal considered the claim of the applicant to face significant harm by reason of an alleged membership of the Ahmadi community and that the Tribunal rejected the applicant’s claim as being a member of that community.  That was an adverse finding that cannot be said to lack an evident and intelligible justification and was open on the material before the Tribunal.  Ground 2 fails to make out any jurisdictional error.

11. From the bar table, the applicant indicated that he cannot go back now because of his physical condition.  The applicant indicated that he was now a diabetic and had health issues.  There is no material to suggest that any such claim was raised before the delegate or before the Tribunal and the applicant conceded that he had never raised such a claim before the delegate.  On the evidence before this court, the applicant’s health was not a claim raised in respect of a fear of significant harm upon which the Tribunal was required to make findings in its review and accordingly it is not a ground that can give rise to jurisdictional error

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 October 2015