SZGTR v Minister for Immigration
[2007] FMCA 146
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGTR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 146 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.51A, 91X, 422B |
| Minister for Immigration & Multicultural Affairs v Lat (2006) 151 FCR 214 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 |
| Applicant: | SZGTR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1860 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 February 2007 |
| Date of Last Submission: | 7 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondents: | Ms T. Wong |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1860 of 2005
| SZGTR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 30 September 2005, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 21 June 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 25 January 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the Applicant is a 27 year old unmarried male citizen of Bangladesh. He was born in Chittagong, and describes his ethnic group and religion as Buddhist. He speaks, reads and writes Bengali, and is literate in English.
The Applicant states that he lived in Raozan (Chittagong) from May 1994 until May 2001 … He studied for 12 years, including at a Buddhist orphanage institute in Raozan from 1994 till 2000, at an institution in Sri Lanka during 2002 and during 2004. He describes his occupation as Buddhist monk, but writes ‘N/A’ with respect to past employment. (Court Book (“CB”) page 78)
The applicant claims to have been persecuted and to fear future persecution in Bangladesh because of his religious beliefs.
Quoting from the applicant’s statutory declaration which accompanied his protection visa application form, the facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-12 of the Tribunal’s decision (CB 78-86). Relevantly, they are in summary:
a)the applicant’s father was involved in religious activities. In January 1994, Muslims tried to stop the celebration of a Buddhist festival, prompting protests by Buddhists, including the applicant’s father. The family came under pressure to leave the area, and the applicant’s sister was assaulted and threatened with kidnap. The family home was then attacked and set on fire. Family members were assaulted, and the applicant’s grandfather died. The family could no longer subsist, and the applicant was sent to an orphanage in Raozan, Chittagong. The other children were sent elsewhere. The applicant embarked on his career as a monk;
b)following completion of his education, the applicant realised that his life would be in danger if he returned to Bangladesh, due to his religion and participation in welfare activities. In June 2000, he began teaching in the Raozan area and was sent back to Cox’s Bazaar in May 2001. Local fundamentalists warned him to stop his activities. They banded with local leaders who realised that the applicant might claim back his parents’ property. The applicant was physically abused one day. Realising it was not safe, he left for Myanmar where he stayed for approximately six months. Whilst there, a dispute arose between Bangladeshi and Burmese monks, and the applicant’s visa was not renewed;
c)the applicant went to Thailand, India, Nepal and Laos looking for opportunities to practice Buddhism peacefully, but was unable to stay in these countries. In 2002, he went to Sri Lanka for nine months, returning to Bangladesh to find that he was still unable to practice his religion there. He left for Sri Lanka again in January 2004;
d)upon his return to Bangladesh, the ‘Muslim terrorists’ demanded a ransom from the applicant, who states ‘the non-Muslims living in an Islamic state have to pay this tax’. He left the country again because of a feeling of insecurity;
e)the applicant was involved in a demonstration organised by the Buddhist Welfare Society, and claims that because of this he came to the ‘attention of local thugs’; and
f)with reference to his return to Bangladesh, the applicant states that there is a real chance of his being persecuted, as “there is no safety and security of life in Bangladesh for a person like me”.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:
The RRT was not satisfied that the Applicant no longer knew the whereabouts of his family, and that he no longer had contact with family or friends in Bangladesh: CB 91. The RRT accepted that the Applicant had spent many years in temples and Buddhist institutions in regional countries, but was not satisfied that these movements in and out of Bangladesh were driven by actual or threatened persecution: CB 92.
The RRT did not accept the Applicant’s claims of physical attacks on his grandfather and sister and the partial burning down of the family home in May 1994: CB 92. The RRT was not satisfied that the Applicant’s account of being subject to extortion demands on his return from Burma in 2002 was correct: CB 93.
The RRT concluded that the Applicant’s claims of past harm in Bangladesh were not reliable: CB 93. The RRT found that the Applicant did not leave Bangladesh at any time to escape such harm, but rather because of his commitment to pursue Buddhist studies and practice: CB 93.
The RRT concluded from the independent country information that Buddhists are generally treated in an acceptable manner, and are not subject to systematic persecution: CB 95. The RRT therefore concluded that the mere fact of being a Buddhist or a Buddhist monk in Bangladesh did not give rise to a real chance of harm amounting to persecution: CB 95.
The RRT further concluded that if the Applicant was apprehensive about returning to his home area for non-Convention related reasons, the Applicant could safely and reasonably live in another part of the country, including one of the cities or towns with Buddhist minorities: CB 96.
Proceedings in this Court
Notwithstanding the pleading in the amended application, by the time the matter came on for hearing, the grounds of the application had been reduced to the following points:
a)the Tribunal failed to accord procedural fairness by not putting to the applicant for comment certain matters on which the Tribunal made findings of fact which were adverse to him; and
b)the Tribunal failed to deal with the applicant’s claim that fundamentalists would bring false charges against him.
Dealing with each of these grounds in turn:
The Tribunal failed to accord procedural fairness by not putting to the applicant for comment certain matters on which the Tribunal made findings of fact which were adverse to him
For the reasons discussed below in paragraphs 16 to 18, this was the only ground pressed by the applicant at the hearing.
The matters referred to in the amended application as demonstrating that procedural fairness was not afforded the applicant were the following:
1(a)One reason the Tribunal rejected the applicant’s claim was because “there would have been ample other opportunities over the years to harm [the applicant] or his father directly. The Tribunal failed to put this point to the applicant and give him an opportunity to comment.
1(b)One reason the Tribunal rejected the applicant’s claim was because local fundamentalists would have known that the applicant did not have “the financial means to pay extortion demands”. The Tribunal failed to put this point to the applicant and give him an opportunity to comment.
…
2(a)One reason the Tribunal rejected the applicant’s claim was because the Tribunal doubted that the fundamentalists would have thought that the applicant would be able to arrest or reverse the decline in the family fortune. The Tribunal failed to put this point to the applicant and give him an opportunity to comment.
However, as submitted by the Minister and conceded by the applicant s.422B of the Act excludes the operation of common law principles of procedural fairness: Minister for Immigration & Multicultural Affairs v Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62. It should be noted that the application in these proceedings was filed on 15 July 2005, the amended application was filed on 30 September 2005 and the decision in Lat’s case was delivered on 12 May 2006.
As the Full Court of the Federal Court said in Lat’s case at 225 [66] in the context of s.51A of the Act which deals with the grant of visas to non-citizens and is, in relevant respects, in terms identical to s.422B:
What was intended was that sub.div. AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
An identically constituted bench of the Full Court of the Federal Court on the same day in SZCIJ applied the reasoning in Lat’s case to s.422B and held that the common law natural justice hearing rule did not apply to Tribunal hearings to which that section relates.
Counsel for the applicant conceded that the decision in Lat’s case made it clear that his client’s claim could not succeed before this Court although it was a matter for the applicant whether he wanted to take the matter on appeal, presumably as far as the High Court.
I agree with counsel that, on the proper interpretation of s.422B of the Act, the common law natural justice hearing rule does not apply to these proceedings and this ground, which was the only one pressed, must fail.
The Tribunal failed to deal with the applicant’s claim that fundamentalists would bring false charges against him
This ground was based on an interpretation by the applicant of a passage in the Tribunal’s decision which was understood to be to the effect that the applicant feared the filing of false charges against him by Muslim fundamentalists.
As observed by the first respondent in his written submissions, the passage to which the applicant appeared to be referring states:
Asked how he could ‘retake’ land which was still in his family’s possession, the Applicant said that the fundamentalists had threatened to seize the land or prevent the family from selling it, and they feared that his return would reverse the family’s decline in local power – for instance, by filing charges against them. The Applicant suffered ‘physical abuse’ as a result, basically pulling at his robes and taunting. (CB 84)
The applicant’s counsel conceded the point made by the first respondent that the Tribunal’s decision had been misconstrued and, on that basis, abandoned this ground.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated by the applicant. Consequently, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 22 February 2007
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