SZDCD v Minister for Immigration
[2018] FCCA 1029
•18 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZDCD v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1029 |
| Catchwords: MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – Applicant from Bangladesh – Applicant assessed under complementary protection criteria and Refugees Convention criteria – whether Tribunal correctly considered complementary protection – whether it was open for Tribunal to draw conclusions regarding Applicant’s documents – whether weighing exercise was rational and logical – whether Tribunal correctly applied test of “significant harm” in s.36(2A) – whether there was a real risk of the Applicant being arbitrarily deprived of his life due to unavailability of treatment for heart problems. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2), 36(2A), 65, 476 Migration Regulations 1994 (Cth) |
| Cases cited: AUZ16 v The Minister for Immigration and Border Protection [2018] FCCA 593 |
| Applicant: | SZDCD |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 645 of 2016 |
| Judgment of: | Judge Baird |
| Hearing dates: | 9 April 2018, 18 April 2018 |
| Date of Last Submission: | 18 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Mr M Wiese of Clayton Utz |
ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 645 of 2016
| SZDCD |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)
This is an application pursuant to s.476 of the Migration Act (1958) (Cth) for judicial review of a decision of the Administrative Appeals Tribunal, dated 25 February 2016. The Tribunal affirmed a decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection, dated 5 August 2014. The Delegate refused to grant a protection (Class XA) Visa to the Applicant.
The Applicant is a citizen of Bangladesh. He was born in January 1971. He first arrived in Australia, in Fremantle, in July 1999, having jumped ship. The Applicant first applied for a protection visa on 31 August 1999. That application, containing no claims, was found to be invalid. On 20 July 2000, the Applicant made a second application for a protection visa. That application was refused by a delegate of the Minister on 22 August 2000. That decision was affirmed by the Refugee Review Tribunal on 21 August 2002. The Applicant unsuccessfully sought judicial review of that decision: see SZDCD v Minister for Immigration and Multicultural Affairs [2006] FMCA 910.
On 19 November 2012, the Applicant lodged a third application for a protection visa, the current Visa application. This application was made following the commencement of the complementary protection criteria in s.36(2)(aa) of the Act on 24 March 2012 and is permissible notwithstanding s.48A of the Act: SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366.
On 5 August 2014, the Delegate refused the current Visa application as I have already said. The Applicant applied to the Tribunal on 2 September 2014 for review of the Delegate’s decision. The Tribunal affirmed the Delegate’s decision to refuse to grant a Visa to the Applicant.
On 22 March 2016, the Applicant applied to this Court for judicial review of the Tribunal’s decision. The Applicant self-filed the application to this Court. By orders made by the Registrar on 5 May 2016, directions were made for the preparation of the matter for hearing.
I refer to orders made by Registrar Morgan on 5 May 2016 which includes the following:
3. The applicant must file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a Tribunal hearing, by 9 June 2016.
4. The first respondent must file and serve any affidavit containing additional evidence to be relied upon by 23 June 2016.
5. Other than the bundle of relevant documents, all evidence relied upon by the parties is to be presented by way of affidavit. Any transcript of a Tribunal hearing must be verified by way of affidavit.
Whilst the directions made for the course of conduct of this proceeding included a direction that, if the Applicant wished to rely on any transcript of Tribunal record, it was for the Applicant to obtain that evidence. I note that the Applicant has not done so. There is no transcript of the Tribunal hearing before this Court.
The matter was set down for mention at a call-over on 6 October 2016, before a Registrar at Law Courts Building, Queens Square, when the matter was set down for final hearing on 9 April 2018 at 2.15 pm, at a Court in the Courts Building at 80 William Street, Sydney and orders were made for written submissions. The matter was transferred to my docket on 21 February 2018. The final hearing of the matter remained listed at 2.15 pm on 9 April 2018, but the location of the hearing was changed to this Court in the Lionel Bowen Building at 97-99 Goulburn Street, Sydney.
Proceedings in this Court
At the hearing on 9 April 2018, the Applicant represented himself, assisted by an interpreter. The First Respondent was represented by its solicitors, with Mr M Wiese appearing. There was a submitting appearance for the Second Respondent.
At the commencement of the hearing on 9 April 2018, the Applicant sought an adjournment of the hearing on the basis that a person who had been helping him had been injured and hospitalised on 13 March 2018 and, whilst released from hospital on 27 March 2018, was only released from rehabilitation on 5 April 2018.
The Applicant also said that he had lost or misplaced the green book, namely the court book, prepared and served by the Minister, containing the Delegate’s decision, the Tribunal’s decision, and correspondence and material placed before the Delegate and the Tribunal.
He also informed the Court that he had never received the Minister’s submissions, as he had changed his address and, whilst his friend had helped him to inform the Registry of the change of address, the change of address did not seem to have been effected. As the Applicant was giving evidence at this point from the Bar table, I required that the Applicant take the oath and give that evidence from the witness box. The interpreter and the Applicant were duly sworn and the Applicant gave evidence.
The dates that I have referred to above are the dates that the Applicant informed the Court, when giving evidence, were the relevant dates that his friend, a Ms Pearson (or Peterson) as I understood him to say, had been assisting him. It transpired that Ms Pearson had been assisting him for at least two years. The Applicant gave evidence that, due to Ms Pearson’s accident, she was not able to contact a lawyer/barrister willing to help until last Friday, 6 April 2018, when she/the Applicant had been able to contact a barrister but, because the Applicant had misplaced the green book, the barrister was not in a position to review the case and give advice before 9 April 2018.
When I questioned the Applicant as to how he knew to come to this Court, he stated that he had initially gone to the Court in William Street at 1.30 pm and was redirected to this Court. The Applicant conceded, on questioning from Mr Wiese, that he had received a copy of the green book and that, after he had lost/misplaced the green book, he didn’t make contact with the Minister’s solicitors to seek another copy of the green book. Whilst the matter was extremely unsatisfactory, and I am concerned at the long history of the Applicant’s various visa applications (since 1999), it was apparent that, at least until 9 April 2018, the Applicant had not received, or at least had not read, a copy of the Respondent’s submissions filed 29 March 2018.
It was also apparent that, in the last month, certain circumstances attending on the person(s) who had been helping him made any recent change of address notification or obtaining of legal assistance unsatisfactory or difficult. Accordingly, I adjourned the hearing to today, 18 April 2018. I informed the Applicant that the matter would proceed on 18 April 2018 and confirmed with him that he now had a copy of the green book as provided by the Minister’s solicitor in Court, and had a copy of the Minister’s submissions. I also note that, when the Applicant applied for the present Visa in November 2012, he was then represented by lawyers, Parish Patience Immigration, as is apparent from the green book, which I have made an exhibit to the proceedings.
The Applicant’s grounds of judicial review
At the hearing before me today, the Applicant pressed the two grounds appearing in the application, which are as follows:
1)That the [T]ribunal member erred in law when he disregarded my documents as evidence on the basis that documents are easily forged in Bangladesh.
2)That the [T]ribunal erred in law that he failed to consider that I would not be able to get adequate treatment for my health conditions were I returned to Bangladesh. He failed to consider that, as a result of lack of treatment that I may end up dead.
At the commencement of the hearing today, I explained to the Applicant that the role of this Court is very different to that of the Tribunal and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the Applicant that the only issue before the Court is whether or not the decision of the Tribunal was made according to law. I explained to the Applicant that this Court has no power to interfere with a decision of the Tribunal unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the Applicant that disagreements with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake.
I also explained to the Applicant the consequences that would flow to him if a cost order was made against him should he be unsuccessful, namely that, whilst any cost order remains unpaid, it becomes a debt to the Commonwealth of Australia. The Applicant confirmed that he wished to continue with the application for judicial review.
The Applicant’s claims
The Applicant’s claims were set out and elaborated upon in his present Visa application, in the departmental interview before the Delegate on 16 June 2014, and in a statutory declaration dated 27 November 2015 before the Tribunal. In that statutory declaration, the Applicant attached three letters and two medical reports, one from a Dr Marie Healy dated 11 September 2014, and the other an undated medical report from Sydney Eye Hospital but which refers to a procedure the Applicant had in his right eye in October 2015. I will refer to these documents later.
In sum, the Applicant claimed to fear harm from the Awami League in Bangladesh, and provided supporting facts and argument seeking to rely on the complementary protection provisions of s.36(2)(aa) of the Act. Additionally, the Applicant claimed that Awami League members would consider him to be rich and would abduct him and torture him to extort money from him. He said that the authorities would not protect him because the Awami League was in power in Bangladesh. Further, the Applicant claimed that medical care in Bangladesh would not meet his critical health needs, which related to a heart condition and eye problems.
Legislative framework
Pursuant to s.65 of the Act, the Minister may only grant a visa if satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (Cth) have been satisfied. The criteria for the grant of a protection (class XA) visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to the present application, s.36(2) of the Act provides that:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied 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;
An Applicant for a protection visa who does not meet the refugee criterion in s.36(2)(a) of the Act (as it stood at the relevant time) may nevertheless meet the complementary protection criterion in s.36(2)(aa) of the Act. At the time that the Tribunal was considering the Applicant’s application, and at the time of its decision, given the state of judicial authority at that time, the Tribunal considered the Applicant’s claims against both the complementary protection criterion, and “out of an excess of caution”, the Refugee Convention criteria for a protection visa.
The Full Court of the Federal Court has since confirmed that the Tribunal was only required to consider the Applicant’s claims against the complementary protection criterion: see SZVCH at [44] and [113], [114]. In respect of the Applicant’s present application for a protection Visa, the formation of a state of satisfaction for the purposes of s.65 is limited, relevantly, to the protection visa criterion not previously considered, that is, in any earlier application. Thus, the Applicant’s claim falls for consideration under s.36(2)(aa) of the Act.
What constitutes “significant harm” for the purposes of s.36(2)(aa) of the Act is exhaustively defined in s.36(2A): see s.5(1) of the Act. S.36(2A) is as follows:
(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.
The expressions in s.36(2A), “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” are further defined in s.5(1) of the Act.
The Full Court of the Federal Court has held that the “real risk” test under s.36(2)(aa) of the Act, that is the complementary protection criteria, imposes the same standard as the “real chance” test applicable to the assessment of well-founded fear in the context of the Refugees Convention: see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ, with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed.
Particulars of the Applicant’s claims
The Applicant's claims fall under three broad categories, the first concerning his political opinion and activities, and the second on account of his political opinion and wealth, and the third concerning his health needs for medical treatment.
In relation to his political opinion and activities, the Applicant's key claims as summarised by the Tribunal including summary of evidence and arguments given at the Tribunal hearing on 2 December 2015, are that the Applicant claims that his political activities and association with the Jatiya Party caused him to fear harm from the Awami League in Bangladesh.
In particular, the Applicant has claimed that:
(a)he sought protection on the basis of his political opinion as a supporter of the Jatiya Party in Bangladesh;
(b)his family had a long history of involvement in political activities;
(c)he first became involved in the Jatiya Party in 1987. He has stated variously that in 1987 he was involved as a youth leader in the Sandwip branch of Jatiya Juba Sanghati, , but later stated that he became a member of the Jatiya Party itself in 1987, and the Secretary of the branch in Sandwip Upazila in 1991.
At various times in the course of his applications, including in the present application for Visa since 19 November 2012, the Applicant has stated that his early involvement was with the youth branch of the party (the Jatiya Juba Sanghati), the student wing of the party (the Jatiya Chhatra Samaj) or the Jatiya Party itself.
At the hearing before the Tribunal on 2 December 2015, the Applicant said, and reiterated, that he belonged to the Ershad faction of the Jatiya Party. He became the joint secretary of the Jatiya Party at Sandwip Upazila in 1991, as I have said;
(d)in Bangladesh he was actively involved in political activities, supporting what he said was the Bangladesh Jatiya Party (BJP). He said he was an executive member of the BJP of Chittagong District (North) (see Tribunal reasons at [12]).
In his Visa application on 19 November 2012, he said he was a supporter of the Bangladesh Nationalist Party (BNP). However, in his statutory declaration on 27 November 2015, he said he was an executive member of the BJP of Chittagong District (North). The Tribunal noted that the BJP was a different party to the BNP;
(e)his political contribution to, and association with, the Jatiya Party in election campaigns in 1991 and 1996 angered the Awami League, whose members harassed and attacked him on a number of occasions. In particular, he claimed that:
(i)in 1991, he was shot in the back at a public election meeting when he was admitted to hospital and he had spent one month in hospital (I note that the Tribunal has noted it was only in his statutory declaration made 27 November 2015 that he had made this claim.) Before the primary decision-maker, he had said that the Awami League had shot at him but he had managed to escape, and he had not said that he had been injured at all;
(ii)in 1996, once again during the election campaign, the Applicant said Awami League members had shot at him but he had escaped. The bullet had not touched him and he had not sustained an injury. However, in the hearing before the Tribunal on 2 December 2015, he had said he had moved to the Hotel Ferdous in 1996 because he had been in hospital. When this was put to the Applicant by the Tribunal, in answer, the Applicant said that his brother had been involved in fighting with another guy, and had been in hospital. He then said that in 1996 his whole house had been attacked, and, after this attack, he had received some injury or had pain in his leg, and he had been in hospital because of that.
The Applicant agreed that he had last left Bangladesh in November 1998, as stated in his applications, and he said to the Tribunal that nothing had happened between 1996 and November 1998, but he had been very scared and very worried.
In response to questioning by the Tribunal as to whether he had been involved in any political activities in Australia, the Applicant repeated that his party did not have any branch in Australia. When asked whether he had had any political involvement at all, the Applicant repeated that his party did not exist here (Tribunal at [27]).
The Applicant also claimed that his brother was killed by the Awami League on 3 March 2000, due to his political opinion and support for the Jatiya Party. He said that his brother had been the leader of the Jatiya Party in the Sandwip Upazila in Chittagong District (North). In support of his claims relating to political involvement and his brother's death, the Applicant produced copies of letters purporting to have been issued by an advocate of a Bangladeshi court, a ward counsellor at Chittagong City Corporation and Mr Chowdhury, the President of the BJP in Chittagong District (North), with all letters dated 9 January 2011.
He says there is a typographical error in the application relating to BNP and BJP. He claimed that members of the Awami League threatened his family members in Bangladesh. He said that for this reason, only his mother and sister still lived in Bangladesh. The rest of his family members were in Bahrain.
As to his second claim, he said that he also feared that the Awami League members would consider him to be rich, and would abduct him and torture him to extort money from him, and that the authorities would not protect him because the Awami League was in power in Bangladesh.
As to his third claim, his medical claim, the Tribunal records the Applicant said since he had been in Australia, he had suffered two heart attacks and that he had problems with his eyes. The two medical reports provided by him show that he is under treatment, at least as at the time of the Tribunal decision. He has glaucoma and as at 11 September 2014, he was prescribed eye drops, which he must continue.
I note there is no reference to requiring eye drops in the medical report from the ophthalmology registrar for Dr Anne Lee from the Sydney Eye Hospital, which refers to procedures in his eyes in March 2015 and in October 2015. His GP's medical report dated 11 September 2014 from Dr Marie Healy, states that he has been advised to attend Sydney Eye Hospital every three to six months for a review, and that he is also under the care of cardiologists at Royal Prince Alfred Hospital, has hypertrophic cardiomyopathy and that an implantable defibrillator has been recommended.
His GP noted that his cardiologists have stated it is unlikely medical care in Bangladesh is suitable to meet his critical needs. There is no medical report from any cardiologist or from the Royal Prince Alfred Hospital named in the GP’s letter.
I note that the Applicant’s claims in relation to his health concerns appear in the Delegate’s decision where the reference is as follows: “He also said that his health is not good, and the treatment he needs is not available there [meaning Bangladesh]. The [A]pplicant was asked if that was the primary motive for him wanting to remain in Australia. He said that “politics was one reason, and medical was the other.” Although it is not raised as a ground of review in this proceeding, for completeness, I note that that part of the Delegate’s decision concluded with the next sentence: “He said that he has no family, friends or jobs in Bangladesh.”
The Tribunal’s decision
The Tribunal, as I have said, considered the Applicant’s claims against the Refugees Convention criteria, despite not being required to do so in the discharge of its duty to review the primary decision, and also considered the Applicant’s claims against the complementary protection criteria. That the Tribunal considered the Applicant’s claims against both criteria does not result in jurisdictional error. In AUZ16v The Minister for Immigration and Border Protection [2018] FCCA 593 at [30], Judge Driver said:
Simply because the delegate made findings in relation to the criteria in both ss.36(2)(a) and 36(2)(aa) did not have the result that the Tribunal was also obliged to consider the criteria in s.36(2)(a). Also, the fact that it did so does not result in jurisdictional error. (citations omitted)
At [19] of the Tribunal’s reasons, the Tribunal referred to the documents that were not submitted as part of the Applicant’s application in 2000. When asked whether the Applicant had the originals of the letters, copies of which accompanied his statutory declaration of 27 November 2015, the Applicant said he did not have the originals of these documents and had lost the originals when he had changed residence.
I also refer to [34] and [36] of the Tribunal decision, which set out the exchanges and the evidence before the Tribunal:
[34]I referred to the fact that [the Applicant] had produced some letters to the Tribunal in support of his claims. He had said that he did not have the originals of these letters because he had lost them which meant that it was not possible to examine them. I put to him that the letter on the letterhead of the Jatiya Party appeared to have some sort of alteration to his name: there was a gap between the first three letters and the second three letters of his second name. I put to him that although these letters purported to be from different people, the two letters in relation to his brother used very similar language which suggested that the same person had written both letters. I invited [the Applicant] to comment but he responded that he had nothing to say. I put to him that he had said that he belonged to the Ershad faction of the Jatiya Party but the letter which he had produced was on the letterhead of the Bangladesh Jatiya Party which was a splinter group formed by the Jatiya Party's former Secretary-General, Naziur Rahman Manjur, in 2001 (after [the Applicant]himself had left the country). I put to [the Applicant] that this made it a little difficult for me to accept that this letter was genuine. [The Applicant] said that it was a fact that his brother had been killed. He said that because of that fear he did not want to return to his country.
The Tribunal then stated (at [36] of its reasons):
[36]I put to [the Applicant] with regard to the letters which he had produced that the information available to me indicated that there was a significant prevalence of fraudulent documents in Bangladesh and that it was common for political party membership confirmation letters to be issued even if the information was incorrect. I indicated to him that I might put more weight on the problems I had with his evidence than I did on the letters which he had produced. [The Applicant] responded that he did not have any comment.
Regarding the Applicant’s claims relating to political involvement, the Tribunal considered that there were significant inconsistencies in the Applicant’s evidence, some of which I have referred to in describing the history of the Applicant’s involvement with various political parties. The Tribunal invited the Applicant to respond to the inconsistencies and the Tribunal, at [40] to [44] indicated to the Applicant the problems that the Tribunal had with his evidence regarding his political involvement in Bangladesh and the inconsistencies that the Tribunal identified:
[40]As I put to [the Applicant] in the course of the hearing before me, I consider that there are significant problems with his evidence regarding his political involvement in Bangladesh. In his second application, lodged on 20 July 2000, he said that he had been a youth leader in the Sandwip branch of the Jatiya Juba Sanghati, the youth wing of the Jatiya Party, but in his statutory declaration made on 27 November 2015 and at the hearing before me he said that he had joined the student wing, the Jatiya Juba Sanghati, in 1987. He maintained, however, that he had joined the Jatiya Party itself in 1987, even though he would have been aged only 16 years old at the time. In his second application [the Applicant] said that his political contribution and loyal association with the Jatiya Party, in particular at the national elections in 1991 and 1996, had made the Awami League angry. However, as I put to him, he gave very vague evidence about the elections in 1991 and 1996 at the hearing before me. As I put to him, I think that if he had been involved to the degree to which he claims he would have had a much better recollection of these details and that he would have remembered, for example, that the Jatiya Party had only received 264 votes in his electorate at the election in 1996. As I put to him, I consider that this suggests that in his area the Jatiya Party had almost no support at all and this makes it difficult to accept that the Awami League would have been targeting him for his involvement in the Jatiya Party as he claims.
[41]As I put to [the Applicant], I consider that he has also given inconsistent evidence with regard to the problems caused by his own and his family's political involvement. When he was interviewed by the primary decision-maker in relation to his current application he said that he had been attacked by the Awami League during the 1991 election. He said that they had shot at him at an election meeting but he had managed to save himself. In his statutory declaration made on 27 November 2015, however, he said that he had been targeted and shot in 1991 and that he had sustained an injury to his spinal cord as a result of which he had been admitted to hospital. He confirmed at the hearing before me that he claimed that he had been shot in the back while he had been addressing an election meeting in 1991 and that he had spent one month in hospital. In his statutory declaration made on 27 November 2015 [the Applicant] said that in 1996 he had been threatened at gunpoint and at the hearing before me he said that they had shot him at gunpoint but the bullet had missed him completely and he had not sustained any injury. After I reminded him that earlier in the hearing he had said that he had moved to the Hotel Ferdous in Chittagong in August 1996 because he had been going to hospital for treatment he said that his whole house had been attacked in 1996 and that after this attack he had received some injury or he had had pain in his leg and he had been in hospital because of this.
[42]When he was interviewed by the primary decision-maker [the Applicant] mentioned that he claimed that his brother had been killed by the Awami League people in March 2000 because he had been a leader of the student wing and he had also been seriously involved in politics. In his statutory declaration made on 27 November 2015 he said that his [brother] had been killed by the Awami League on 3 March 2000 due to his political opinion and support for the Jatiya Party. He said that his brother had been the leader of the Jatiya Party in the Sandwip Upazila in Chittagong District (North) and he produced letters dated 9 January 2011 purporting to corroborate these claims. At the hearing before me his representative said that [the Applicant] had first mentioned the death of his brother when he had been seeking Ministerial intervention in 2011. As I noted, I do not have copies of these documents but I accept based on the date of the letters which were produced that he first made this claim then. As I put to [the Applicant], although he claims that his brother was killed on 3 March 2000 he included him in his family details in his second application made in July 2000 and in his current application in November 2012 and he said that he was living in Bangladesh. [The Applicant] simply repeated that his brother had died in March 2000.
[43] As I put to [the Applicant], I consider that there are also problems with the three letters which his representatives produced to the Tribunal. [The Applicant] said that he did not have the originals of these letters because he had lost them and as I put to him this means that it is not possible to examine them. As I put to him, the letter on the letterhead of the Jatiya Party appears to have some sort of alteration to his name: there is a gap between the first three letters and the second three letters of his second name. As I also put to him, although the two letters in relation to his brother purport to be from different people, they use very similar language which suggests that the same person in fact wrote both letters. As I put to him, he said at the hearing before me that he belonged to the Ershad faction of the Jatiya Party but the letter which he produced on the letterhead of the party is on the letterhead of the Bangladesh Jatiya Party BJP which was a splinter group formed by the Jatiya Party's former Secretary-General, Naziur Rahman Manjur, in 2001. As I put to [the Applicant], this make it difficult for me to accept that this letter is genuine.
The Tribunal considered that these inconsistencies outweighed any support that the documentary evidence the Applicant submitted gave to his claims:
[44]As I also put to [the Applicant] with regard to the letters which he had produced, the information available to me indicates that there is a significant prevalence of fraudulent documents in Bangladesh and that it is common for political party membership confirmation letters to be issued even if the information is incorrect. As I indicated to him, I put more weight on the problems I have with his own evidence than I do on the letters which he has produced. Having regard to the problems which I have identified with his evidence above, I do not accept that [the Applicant] had the political involvement which he claims to have had in Bangladesh or that he was targeted by the Awa mi League for reasons of his political involvement as he has claimed. Even if [his brother] was killed on 3 March 2000 as he has claimed, I do not accept on the evidence before me that his brother was killed because of his political involvement.
The Tribunal did not accept the Applicant’s claims relating to political involvement or his fear of harm on that basis. The Tribunal also outlined country information, which it concluded was not consistent with the Applicant’s claims:
[45]At the hearing before me [the Applicant] said that if he returned to Bangladesh the ruling party, the Awami League, was going to kill him. However, as I put to him, he has said that he belongs to the Ershad faction of the Jatiya Party and this party is part of the ruling coalition with the Awami League. [The Applicant] conceded that this was correct but he said that the Awami League had made his family a target. However, having regard to the problems which I have identified with his evidence above, I do not accept that the Awami League has made his family a target because of their involvement in the Jatiya Party. As I put to him, the independent evidence suggests that the Jatiya Party has almost no support at all in his area and I consider that this makes it difficult to accept that the Awami League would have been targeting him or his family for their involvement in the Jatiya Party as he has claimed. Given that the Ja1iya Party was in coalition with the Awami League at the time, I do not accept that the police or the 'administration people' refused to take his report against the Awami League people in 1991 as he claimed when he was interviewed by the primary decision-maker.
[46]As I put to [the Applicant], the Australian Department of Foreign Affairs and Trade assesses that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of political violence on a day-to-day basis due to their political affiliations and it has said that opposition party members engaged in protest face a low risk of being arrested. In his statutory declaration made on 27 November 2015 [the Applicant] expressly abandoned the claim made in his current application that he had been a supporter of the BNP. I do not accept on the evidence before me that there is a real chance that [the Applicant] will be persecuted for reasons of his real or imputed political opinion in support of the Jatiya Party (based on his own or his family's involvement in that party) or his membership of the particular social group constituted by his family (based on their support for the Jatiya Party) if he returns to Bangladesh now or in the reasonably foreseeable future. Given that the Ershad faction of the Jatiya Party to which he claims to belong is part of the ruling coalition with the Awami League I do not accept that there is a real chance that he will be refused state protection for reasons of his political opinion as he has claimed.
I interpose here to note that I provided copies of the above mentioned letters to the Applicant at the hearing today, and I also provided copies of the medical reports he relied on because, notwithstanding that the Applicant has been given a copy of the green book on two occasions now, and notwithstanding that it should have been clear to the Applicant on 9 April 2018 that he should bring the green book to court today, he has not done so.
I also note that at the hearing on 9 April 2018 there was a person in the Court who appeared to be able to assist the Applicant, and that there was also an interpreter, to ensure that he understood that he was being given a further copy of the green book. For the record, I also note that today the Applicant indicated that he did have a copy of the Tribunal’s reasons and I observed madam interpreter identify parts of the Tribunal’s reasons as they were referred to by the Minister’s legal representative during the course of his submissions.
The Tribunal was not satisfied that the Applicant was at risk of torture and extortion by members of the Awami League and, in that respect, the Tribunal referred to the criterion of significant harm.
In relation to the documents submitted by the Applicant to support his claim relating to political involvement, the Tribunal identified the three letters submitted to support the claims, to which I have referred, and considered there were problems with the three letters:
(a)the Applicant claimed to have lost the original versions of the letters with the result it was not possible to examine the originals;
(b)the two letters relating to the Applicant’s brother purported to have been issued by two different people, but used very similar language, which suggested they were written by the same person;
(c)the letter purporting to have been issued on BJP letterhead, that is the letter from Mr Chowdhury, appeared to have an alteration to the Applicant’s name. The Applicant also claimed at the hearing before the Tribunal to belong to the Ershad faction of the Jatiya Party, but this letter was on the letterhead of the BJP, which was a splinter group formed in 2001, after the Applicant had left the country;
(d)country information indicated a significant prevalence of fraudulent documents in Bangladesh and that it was common for political party membership confirmation letters to be issued with incorrect information.
The Tribunal concluded for these reasons that any support provided by the letters was outweighed by the inconsistencies in the Applicant’s own evidence.
In relation to the health problems, the Tribunal accepted that the Applicant had glaucoma and heart problems. At [51] of its decision, the Tribunal further stated:
[51]Under cover of their email message dated 27 November 2015 [the Applicant’s] representatives produced evidence in relation to his health problems and, as I indicated to him in the course of the hearing before me, I accept that he has glaucoma and heart problems. However, as I put to him, there is nothing in the evidence before me to suggest that the Government of Bangladesh has limited treatment for people with the sort of health problems he has on an arbitrary basis such that it could be said that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will be arbitrarily deprived of his life. The definitions of 'torture' and 'cruel or inhuman treatment or punishment' in subsection 5(1) of the Migration Act require that pain or suffering be 'intentionally inflicted' on a person and the definition of 'degrading treatment or punishment' requires that the relevant act or omission be 'intended to cause' extreme humiliation. As I put to [the Applicant], I do not accept on the evidence before me that there is an intention to inflict pain or suffering or to cause extreme humiliation to people suffering the sort of health problems which I accept [the Applicant] has. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the Applicant] being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined as a result of his health problems …
The Tribunal member stated that the definitions of “torture” and “cruel or inhuman treatment or punishment” require that pain or suffering be “intentionally inflicted” on a person while the definition of “degrading treatment or punishment” requires that the relevant act or omission be “intended to cause” extreme humiliation. As is apparent from [51] of the Tribunal’s decision, the Tribunal did not accept from the evidence before it, namely the two doctors’ reports and country information, that there is an intention to inflict pain or suffering, or to cause extreme humiliation to people suffering the sort of health problems, which the Tribunal member accepted that the Applicant has, in Bangladesh.
The Tribunal concluded that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations. The Tribunal concluded that the Applicant does not satisfy the criterion relevantly set out on s.36(2)(aa) of the Act for a protection visa, and the Tribunal affirmed the decision not the grant the Applicant a Visa.
Submissions before this Court
At the hearing today on 18 April 2018, the Applicant was self‑represented and had the assistance of a qualified interpreter. I have already said that at the commencement of the hearing I described the role of this Court and how it differs from the role of the Tribunal. I asked the Applicant to confirm that he relied on the two grounds set out on the application, and those grounds were read to him and interpreted to him. He confirmed that he relied on those two grounds.
In relation to ground 1, the Applicant submitted that the documents were genuine, that they killed his brother, and that the Tribunal did not believe his evidence, that he had provided witness statement and that he was asked and explained about the statement, but the Tribunal did not believe him.
In relation to ground 2, relating to his health problems, the Applicant has said that he has his diseases, the treatment is not available in Bangladesh, and he has been given a certain number of days, which I understand him to say without treatment, and then he might die. The Applicant said, “I have said all these things and the Tribunal did not believe me.” I observe that the Applicant’s submissions in this regard appear to be primarily, if not entirely, to ask this Court to undertake a merits review, that is, to look at the documents and to come to a different conclusion. Mr Wiese has made submissions as to each of the grounds and, for the reasons I will now expand, I accept Mr Wiese’s submissions.
Consideration
Ground 1
In ground 1, the Applicant misstates the reasoning of the Tribunal. The relevant findings of the Tribunal are set out at [43] and [44] of the Tribunal record, which I have referred to above. The Tribunal did not disregard the letters purported to have been issued in Bangladesh, and its consideration of those letters was not limited, in my opinion, to the country information concerning the possibility of forgery. The Tribunal set out several reasons at [42] to [44] why it was difficult to accept that the letters were genuine but, ultimately, what the Tribunal did was look at the inconsistencies in the evidence that the Applicant had put in his various statements, statutory declarations and explanations in the hearing before the Tribunal. What the Tribunal did was conclude at [44] that any support those letters might give was outweighed by the inconsistency on the Applicant’s own evidence in the different things he had said over time. In my review here, I am bound to say the weighing of the various pieces of evidence is a matter for the Tribunal and not a matter for this Court on judicial review. The High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] directs me as much. See also at [32] of that decision.
I find it was open to the Tribunal to come to the conclusions it did and that its weighing of evidence was open to it. The Tribunal gave the Applicant an opportunity to give evidence and present arguments on issues relating to the letters, and to present responses in relation to the inconsistencies in his evidence about his various political involvements. That balancing exercise, on the weight of the material before, it is within the Tribunal’s role, and I find that it was open to the Tribunal to undertake that exercise.
I do not find that the Tribunal’s weighing exercise was irrational or illogical within the language of the High Court decision in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Although it has not been expressly raised by the Applicant, the fact that the Tribunal gave the Applicant an opportunity to, and fairly set out what its concerns were, with the letters and with the inconsistency in the evidence, I find the Tribunal did not demonstrate any lack of procedural fairness. In that the Tribunal said that the BJP letterhead was on the letter of a party formed after the Applicant left Bangladesh and that it was very difficult to accept that letter, such a conclusion by the Tribunal was open on the Applicant’s own evidence and chronology of his involvement before and after he left Bangladesh. I find that there is no error of the Tribunal disclosed in relation to ground 1 and that ground of review must be dismissed.
Ground 2
I now turn to consideration of ground 2. To reiterate, the ground is that the Tribunal erred in law by failing to consider that the Applicant would not be able to get adequate treatment for his health conditions when he returned to Bangladesh and failed to consider that, as a result of lack of treatment, “that I may end up dead”. First, it is apparent from the decision record of the Tribunal that the Tribunal acknowledged that the two medical reports were part of the evidence, and the Tribunal accepted that the Applicant had glaucoma and heart problems. That is made clear in [51] of the Tribunal’s decision. Now, I note from the second medical report that since the date of the GP’s letter, the Applicant has had two eye operations. I understand from the Sydney Eye Hospital letter, those operations were required to manage his elevated intra-ocular pressures, and that what is required is lifetime monitoring of his intra-ocular pressure and visual fields. That monitoring is monitoring that, as I read it, the Applicant can and should attend to.
Ground 2 does not reflect the Tribunal’s reasoning. The Tribunal adverted to the medical treatment available to the Applicant in Bangladesh, but did not accept that the Applicant’s health problems could found a claim to require protection under the complementary protection criterion of the Act.
There was no evidence before the Tribunal, as the Tribunal states in its decision, and the Applicant has not pointed to any evidence, to suggest that the government of Bangladesh has limited treatment on an arbitrary basis for people with the sort of health problems the Applicant. What the Tribunal did was look at the medical evidence and apply the provisions of the Act, namely s.36(2)(aa), the definition of significant harm in s.36(2A), and the definitions in s.5(1) of the Act as to the various terms used within s.36(2A). As the First Respondent’s legal representative put it, the prospect of dying of a health condition that the Applicant suffers from is not, “without more”, a subject matter than enlivens the application of the criterion for complementary protection under the Act.
Under s.36(2A), and the definition in s.5(1) of the Act, a non-citizen would suffer significant harm, in the present case, in Bangladesh, if, among other things, they would be “arbitrarily deprived of life”, or subject to “torture” or “cruel or inhuman treatment or punishment”. There is no evidence that the Applicant would be denied medical treatment on an arbitrary basis if he was returned to Bangladesh. It is also apparent in [51] of the Tribunal’s decision, that the Tribunal had regard to the definitions of “torture”, and “cruel or inhuman treatment or punishment” which requires that pain or suffering be “intentionally inflicted”, and the definition of “degrading treatment or punishment”, which requires the act or omission be “intended to cause” extreme humiliation. Having regard to the definitions of “torture”, and “cruel or inhuman treatment or punishment” in s.5(1), there is no evidence that the Applicant would be intentionally subjected to these sorts of harm if he was returned to Bangladesh.
Given that lack of evidence I have referred to, it was open to the Tribunal to find that the evidence did not disclose any intention to inflict pain or suffering, or cause extreme humiliation to people suffering from the sort of health problems which the Applicant has, and, I note, which the Tribunal accepted that the Applicant has.
In short, the findings of the Tribunal in relation to ground 2 were findings that were open to the Tribunal on the evidence before it, and I so find. The application of the requirement for a relevant intention by the Tribunal is consistent with SZTAL v the Minister for Immigration and Border Protection (2017) HCA 34; (2017) 347 ALR 405 at [26], which is to the natural and ordinary meaning of the word “intends”, and therefore to actual subjective intent, to achieve, in the present case, the relevant harm, cruel or inhuman treatment, or punishment, or to arbitrarily deprive the Applicant of life:
[26] The reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective, intent. As Zaburoni confirms, a person intends a result when they have the result in question as their purpose.
I find that the Tribunal approached the claim of the Applicant as to his health concerns correctly, and applied the correct test. Ground 2 otherwise seeks a merit review. That is not a review available in this Court on this application for judicial review.
In conclusion, I find that that ground 2is not made out, and I dismiss it.
Conclusion
The Applicant has not demonstrated any jurisdictional error affecting the decision of the Tribunal.
The application will be dismissed.
I certify that the preceding sixty‑six (66) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 30 April 2018
5
7
3