SZFTJ v Minister for Immigration

[2007] FMCA 543

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 543

MIGRATION – Visa – protection visa -Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Bangladesh  claiming fear of persecution for reasons of religion and political opinion – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 424

Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263

Applicant: SZFTJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3077 of 2006

Judgment of: Scarlett FM

Hearing date: 26 March 2007

Date of Last Submission: 26 March 2007

Delivered at: Sydney

Delivered on: 26 March 2007

REPRESENTATION

Counsel for the Applicant: Mr Anthony

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The title of the first respondent is changed to Minister for Immigration & Citizenship.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs fixed in the sum of $4,600.00 and I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3077 of 2006

SZFTJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal that was handed down on 26^th September 2006, affirming the decision of a delegate of the minister not to grant the applicant a protection (Class XA) visa.  In his amended application, filed with leave of the Court on the day of the hearing, the applicant seeks orders quashing the Refugee Review Tribunal decision and remitting his application to the Tribunal, differently-constituted, to be determined according to law. 

2. The applicant is a citizen of Bangladesh, who arrived in Australia on 22^nd April 2004, and applied for a protection visa on 3^rd June that year.  His application was refused on 25^th June 2004, so he applied to the Refugee Review Tribunal for review of that decision.  The Tribunal affirmed the delegate's decision.  The applicant sought judicial review of that decision and, on 7^th June 2006, the Federal Magistrates Court made orders by consent, setting the Tribunal decision aside and remitting it to the Tribunal to be determined according to law.

3. The Refugee Review Tribunal wrote to the applicant on 7^th July 2006, inviting him to provide any further documents or written arguments for consideration.  The Tribunal wrote again to the applicant on

   
   

   28^th July 2006, inviting him to comment on certain information. 

   
   

   The letter said that the Tribunal had information that would, subject to any comments the applicant made, be the reason, or part of the reason, for deciding that he was not entitled to a protection visa.  The letter referred to two statements submitted with his primary application and to inconsistencies between that the applicant made at the time of his primary application and oral evidence which he gave at the Tribunal on 20^th October 2004.  The letter went on to particularise those inconsistencies and inform the applicant that the information was relevant, because those inconsistencies in his evidence might lead the Tribunal to consider that the specific claims mentioned in the items of information referred to, or his claims in general, were not to be believed.  The letter asked for written comments by 11^th August 2006.  A copy of that letter appears at pages 71 and 72 of the Court Book.

4. The applicant's migration agent replied to that letter on
   11^th August 2006, seeking an extension of time in which to provide comments and supporting documents. 

5. The Tribunal refused the request for an extension, saying:

   The Tribunal's letter of 28^th July 2006 sought your comments on inconsistencies between written or oral claims made by you at different times or between your actions and your claims.  It did not seek additional information from Bangladesh.

6. The applicant's migration agent then wrote to the Tribunal on

   
   

   15^th August 2006, in a four-page letter, making comments about the matters in the Tribunal's letter of 28^th July.  A copy of that letter appears at pages 76 to 79 of the Court Book.  The agent also forwarded three documents from Buddhist organisations, two in Bangladesh and one in Australia, and two typed letters from the applicant's mother. 

7. The Tribunal handed down its decision on 26^th September 2006, affirming the delegate's decision not to grant a protection visa.  A copy of the Tribunal decision record can be found at pages 89 to 108 of the Court.  In the decision, the Tribunal noted the applicant's claims of general discrimination against Buddhists in Bangladesh, including discrimination in employment and in obtaining police protection from violence.  The Tribunal also noted the applicant's claim to have become a director of a cooperative that provided small loans to Buddhist business people and subsequent assaults and other attacks by supporters by the BNP Coalition.

8. The Tribunal referred in detail to the applicant's evidence at the Tribunal hearing on 20^th October 2004, including:

   The applicant confirmed that he believed that Buddhists are subject to general discrimination amounting to persecution in Bangladesh[1].

   [1] See Court Book at 95

9. The Tribunal also referred at length to its letter to the applicant of

   
   

   28^th July 2006 and the subsequent comments from the applicant's migration agent received on 16^th August. 

10. In its findings and reasons, which are set out on pages 105 to 108 of the Court Book, the Tribunal accepted that the applicant is a citizen of Bangladesh.  However, referring to the tape of the Tribunal on
    20^th October 2004, the Tribunal said:

    The applicant was not convincing.  He was very vague on many matters, despite attempts by the presiding member to obtain greater precision on detail.[2]

    [2] Court book at 105

11. The Tribunal was not satisfied that the applicant's documentary evidence supported his case, and found, in particular, that the letters purporting to be from the applicant's mother were not genuine, and gave them no weight.  In conclusion, the Tribunal declared:

    I am prepared to accept that the applicant is Buddhist but I do not accept that he had a leadership position or that he suffered any harm amounting to persecution in Bangladesh.  His evidence has been vague and contradictory and, at times, not believable. 
    His delay in leaving Bangladesh further undermines his credibility.  Accordingly, I do not accept that the applicant was threatened or attacked or that any member of his family was attacked for reason of his religion or his real or imputed political opinions.  Nor do I accept that there is a real chance of such things occurring to him in Bangladesh, should he return there in the foreseeable future.

    I find that the applicant does not have a well-founded fear of persecution in Bangladesh, for reason of his religion, his political opinion or for any other Convention reason.[3]

    [3] Court Book at 107

12. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, and, therefore, did not satisfy the criterion set out in sub-s. 36(2) for a protection visa.

13. The applicant commenced proceedings by filing an application and an affidavit in support on 23^rd October 2006.  He subsequently briefed counsel to appear for him, and Mr Zipser of counsel has prepared written submissions and an amended application for him.  Mr Anthony of counsel appeared for me on the day of the hearing.

14. The amended application contained two grounds, although Mr Anthony told the Court that the second ground would not be pressed. 

    
    

    The ground of the application is that:

    The applicant claimed that Buddhists were subject to general discrimination amounting to persecution in Bangladesh and he feared returning to Bangladesh for this reason.  The Tribunal did not make a finding in relation to this claim.  On this basis, the Tribunal fell into jurisdictional error.

15. In support of this ground, the applicant's written submission referred to his statutory declaration that accompanied his application for a protection visa, in which he made a number of references to discrimination and to disadvantage suffered by Buddhists in Bangladesh.  In his oral submission, Mr Anthony identified three other references to this claim, at pages 18, 20 and 21 of the Court Book.  It is the applicant's case that the Tribunal did not deal with the second category of claim, being that of general discrimination against Buddhists in Bangladesh and that, where an applicant makes a claim and the Tribunal does not make a finding in relation to it, this constitutes jurisdictional error (see Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244, at [42], NABE v Minister for Immigration & Multicultural & Indigenous Affairs No. 2 [2004] FCAFC 263, at [57]-[60]).

16. The applicant submits that the respondent would seek to rely on the finding by the Tribunal at page 107 of the Court Book, which I have previously quoted.  However, he submitted that:

    This finding, in its context, is limited to a rejection of the applicant's claims concerning events personal to him. 

    
    

    In particular, the words "such things" refers back to the applicant's claim that he was threatened or attacked or that a member of his family was attacked.  This finding gives no consideration to the applicant's claims of general discrimination against Buddhists amounting to persecution, as explained by the applicant in his statutory application accompanying his protection visa application.

17. For the applicant, Mr Anthony submitted that the applicant had made two claims and that rejection of the one claim which the Tribunal did deal with did not affect the other and that there was, therefore, a constructive failure to exercise jurisdiction.  He submitted that the specific claim that all Buddhists in Bangladesh suffer discrimination was not subsumed under a more general claim.  Indeed, it would be difficult to see how it could.  He submitted that members of the Buddhist community are not protected by the state when they are harassed.

18. The submission is that the Tribunal has admitted consideration of the applicant's more general claim and that the Tribunal at no time found the applicant to be such an untruthful witness that it did not believe anything that he said, but nothing in the decision, it is submitted, went to the applicant's more general claim that the Buddhist minority is discriminated against, and that the test to be applied is prospective - that is, fear of harm in the future.

19. For the respondent minister, Mrs Sirtes of counsel submitted that the Tribunal did accept that the applicant is a Buddhist but did not accept that the applicant was one of the leaders of the Buddhist community, in particular, the non-government organisation to which the applicant belonged, which was the cooperative.  She submitted that the Tribunal separately rejected the fact of any harm that he had suffered and rejected that he had suffered any harm.  She drew the Court's attention to the words at page 107 of the Court Book, that:

    The applicant's delay in leaving Bangladesh further undermined the applicant's credibility.

20. Drawing attention to the meaning of the word "further".  She further submitted that the applicant's Buddhism was a common denominator in both claims, and submitted that both claims were in fact met by the Tribunal. 

21. In reply, Mr Anthony pointed out that the applicant was not relying on being a member of a particular social group but was relying on the reason of religion, and submitted that the Tribunal could not make a general finding to deal with a clearly articulated claim.

22. Clearly, the applicant's submission is that the applicant made two separate claims as to persecution, or claims in two categories. 

    
    

    One category arose from events personal to the applicant, and the applicant claimed that, as a result of those personal events, he feared for his life if he was required to return to Bangladesh.  The second category arose from general discrimination against Buddhists in Bangladesh.  The basic submission is that the Tribunal dealt with the first claim, the matters in the first category, but did not deal with the second claim, being general discrimination against Buddhists in Bangladesh.

23. In my view, the Tribunal simply did deal with both claims.  It is apparent, on my reading of the Tribunal decision, that the Tribunal was aware of the claim that Buddhists were subject to general discrimination amounting to persecution in Bangladesh, and was not only aware that the applicant was a Buddhist but was prepared to make that finding. 

24. The acknowledgment of the applicant's general claims of discrimination amounting to persecution directed towards Buddhists in Bangladesh appears throughout the Tribunal's decision.  The Tribunal referred to the applicant having been questioned at the hearing about this claim and how general country information was put to him, which referred to particular problems for Bangladeshi Buddhists from the Chittagong Hill Tracts and discrimination against minority groups generally but did not refer to any persecution of Bengali Buddhists.  The applicant was asked about that and replied to it, saying that his village, in particular, was not a good place for Buddhists; there are Muslims and Buddhists living there but Buddhist religious programs have been threatened.  The applicant went on to refer, in vague terms, as the Tribunal said, to the killing of a local Buddhist leader in his area some two years earlier, and the Tribunal noted that that murder had been widely reported, and referred to independent country information. 

    
    

    This all appears at page 95 of the Court Book.

25. The Tribunal noted that the previous Tribunal member had asked the applicant about seeking protection in Europe during his visit there in October 2002, and noted the previous Tribunal member expressing serious concerns about the veracity of the applicant's account.

26. The letter written to the applicant by the Tribunal on 28^th July 2006 is a letter which was clearly intended to be written to comply with the provisions of s. 424A of the Migration Act. That letter sets out the Tribunal's concerns about pieces of information, in particular:

    Since your arrival in Australia, you have not maintained contact with fellow practitioners in Bangladesh or established contacts with Buddhists in Australia.  This may lead the Tribunal to conclude that you do not have a level of commitment to Buddhism or to your community which would attract hostile attention to you.  In your primary application, you claimed to have had a leadership profile within your community, yet your description of your role at the mediation centre - organising of functions and managing funds - the lack of any reference to you in public sources, whereas the names of other prominent persons associated with the monastery, including the current secretary‑general, are readily available, and your vague and incomplete answers concerning the current personnel at the monastery and associated institutions call into question your claimed prominence.

27. These issues relate to the applicant's claim of being persecuted - not on the basis of his political profile but on the basis of his membership of the Buddhist-led religion in Bangladesh. 

28. It should be remembered that, where there is a claim of general discrimination against members of a particular religion in a particular country, an applicant will only establish a well-founded fear of persecution if the applicant is not only a member of that religion but is seen to be a member of that religion by those people who would persecute, or are likely to persecute, or may be perceived to persecute, members of that religion.  In my view, the question of the applicant's membership of the Buddhist religion is squarely on the agenda, and, in my view, the Tribunal's findings deal with both issues.  I am satisfied that no jurisdictional error has been made out. 

29. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision and, as such, it is not subject to orders in the nature of certiorari or mandamus.  As such, it must follow that the application will be dismissed. 

30. I note that the title of the Minister has changed to Minister for Immigration & Citizenship, and I propose to make an order reflecting that change.

31. There is an application for costs on behalf of the first respondent minister.  The amount sought is $4,600.00, which in my view, is an appropriate figure.  On the question of time to pay, Mr Anthony of counsel submits that it would be appropriate to allow time to pay.  Whilst I am not prepared to allow as much as six months to pay,

    
    

    I accept the fact that the applicant does have his own legal expenses to be met, and I would certainly allow four months to pay.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Shazzle Polley

Date:  10 April 2007