SZMSB v Minister for Immigration
[2008] FMCA 1637
•12 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMSB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1637 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Court cannot review the Tribunal’s findings of fact or conclusions on the merits of a review application – no breach of s.91R(3) proved – Tribunal impliedly concluded applicant’s conduct in Australia was not engaged in to further his claim to be a refugee. |
| Migration Act 1958, ss.91R, 424, 427 |
| Karanakaran v Secretary of State for the Home Department [2000] 3 ALL ER 449 WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105 |
| Applicant: | SZMSB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2268 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 2 December 2008 |
| Date of Last Submission: | 2 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J.A.C Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2268 of 2008
| SZMSB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh where he claims he was involved with the student wing of the Awami League while at college. He alleges that while in Bangladesh he was persecuted by the Bangladesh Nationalist Party (“BNP”) and that subsequently he had to return to his home area to become a Buddhist monk and live in a temple. The applicant arrived in Australia most recently on 11 November 2007. He had previously visited Australia between 28 October 2006 and 26 November 2006, and 26 May 2007 and 4 July 2007.
The applicant claims to fear persecution in Bangladesh because of his religion, as a Buddhist, and his political opinion due to his support for the Awami League.
After his most recent arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 6 March 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 21 of the Tribunal’s decision (Court Book (“CB”) pages 169 – 186).
In a statement accompanying his application for a protection visa, the applicant claimed that:
a)he is a Buddhist;
b)he became a member of the Awami League’s student wing, the Chattra League, while he was a student in 1998;
c)residents of a dormitory for minority students were attacked and beaten in a three-hour raid in January 1996;
d)during his political career, he was the organising secretary of the Union Chattra League, was elected vice-president at his college in 2000 and became well-known to his political opponents;
e)he was a member of various Buddhist welfare organisations in his home area;
f)after the BNP came to power in 2001, discrimination against and persecution of Buddhists in Bangladesh increased and he and his family were targeted by BNP activists;
g)in 2002 the BNP was responsible for the assassination of a prominent Buddhist abbot;
h)on 16 December 2001 his Chattra League group were laying a wreath at a national memorial when they were severely beaten by rival BNP and Jamaat-E-Islami (“JEI”) student groups and he had to be taken to hospital. The BNP warned him not be involved in politics;
i)on 3 January 2002 the BNP filed a false case against him over alleged possession of firearms and an arrest warrant was issued;
j)he had to hide in different parts of Bangladesh. He returned to his home area in May 2003, became a Buddhist monk and began to reside in a temple. Although he tried to convince his opponents he was no longer involved in politics, after six weeks he was fearful and moved to another temple in Mahalchori;
k)after a riot broke out in Mahalchori on 26 August 2003, he organised a public protest. As the BNP found out about this, he travelled to India for refuge and stayed in a temple in Kolkata;
l)in November 2005 he decided to return to Bangladesh as the Indian government began to flush out illegal immigrants;
m)when he returned to Bangladesh the applicant claimed the political situation had not improved notwithstanding that the BNP government had handed over to a caretaker government in 2005 pending elections;
n)he again went to India in March 2006 to consult his guru and after he returned to Bangladesh he left again, this time for Thailand, in April 2006; and
o)he was not allowed to stay indefinitely in Thailand and decided to try to find protection in Australia.
At the Tribunal hearing on 10 June 2008 the applicant appeared and made the following additional claims:
a)in 2000-2001 he “became president’ of the Chattra League at his college campus. There were 100 to 200 members and the campus chapter was led by him and a general secretary;
b)he stopped being president of his campus’s chapter of the Chattra League in June or July 2001 when the caretaker government ordered all political activities to cease. He did not resign from this position as student politics were banned;
c)from the time it came to power in 2001 the BNP came looking for him almost every month because when he was in college he was always outspoken against the BNP, its activities and the corruption of BNP “ministers”. He later said that the BNP came to his home as they targeted Awami League supporters after it came to power;
d)the applicant said he was specifically targeted due to his individual activities and attacks on “Chowdhury”. He gave various responses as to who Chowdhury was, including that:
i)he was a minister from 2000 to 2001 during both the Awami League and BNP governments looking after the Chittagong area;
ii)his role was to advise a minister;
iii)during the Awami League government he was the “opposition” minister; and
iv)he was corrupt and against the Awami League.
e)in response to the Tribunal noting that nothing he said at the hearing suggested he was very “clued into” politics, the applicant replied that he had lost his memory;
f)he did not lodge a protection visa application during his first visit to Australia because at the time he was studying in Thailand and was only visiting Australia to attend a conference;
g)when asked why he prioritised study in Thailand, a country of temporary residence, over seeking permanent protection as a refugee he said that his intention at the time was to finish his study;
h)the applicant claimed he faced problems in Bangladesh due to his religion, namely his association with the “Hindu-Buddhist-Christian Coalition” (“Coalition”);
i)he claimed that the Coalition tried to tell people their human rights were not recognised and that “young people … have not enough facilities”;
j)when Buddhists organised religious celebrations other people opposed them by using microphones and loudspeakers; and
k)concerning his knowledge of the assassination of the Sheikh Mujibur Rahman, the applicant said that the BNP and JEI were responsible for his killing. He later said that he recalled an individual by the name of “Dalim” being involved and another assassin, “Nizam” or “Nizami” who joined the JEI.
After its hearing, the Tribunal received a number of statutory declarations from the applicant reiterating most of the claims made in his protection visa application and at the hearing. In a further submission under cover of a letter dated 30 June 2008, the applicant’s adviser claimed that the applicant intended to refer to Mr Chowdhury as a member of parliament rather than as a minister and that this confusion stemmed from trauma and not a lack of competence in discussing the politics of Bangladesh. In his accompanying statutory declaration dated 27 June 2008, the applicant also claimed that:
a)the inaccuracies in many of the dates cited by him in his application and at the hearing were the result of him having to lodge his protection visa application quickly due to his fear of returning to Bangladesh;
b)in 2001, 2002 and from 2005 the BNP supporters told the applicant or his father that they would kill him if they found him;
c)he was living in a temple at the time of the 2005 threat and therefore escaped to Thailand; and
d)he continued his involvement with the Chattra League after he finished his studies in 2001 but they had to meet in private.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and 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:
a)although the Tribunal accepted the applicant is a Buddhist who lived as a monk at a Buddhist temple and also with his family, considering the evidence given by the applicant and the country information before it, the Tribunal was not satisfied that he faces a real chance of persecution anywhere in Bangladesh for reasons of his religion, noting that:
i)the Tribunal did not accept that the BNP was responsible for the abbot’s killing and, in any event, observed that the applicant does not share significant characteristics with the abbot as he was only temporarily a monk and was not a prominent, senior or leading one;
ii)although the Tribunal accepted that minority students were attacked and beaten in January 1996, this was an isolated incident that occurred twelve years ago;
iii)the applicant’s family continues to live in their home area without experiencing significant disruptions to their lives due to their Buddhism, even though his father is active in the Coalition;
iv)when queried regarding the question of serious harm for reasons of religion the applicant was digressive and vague to the point of appearing evasive. His evidence at best described localised arguments over the use of public address systems and was found to be unimpressive and unsatisfactory and it did not disclose any evidence of persecution or of treatment indicative of a real chance of persecution; and
v)from independent country information before it, the Tribunal did not accept that there was evidence of sustained and systemic discrimination against, or persecution, of Buddhists in Bangladesh;
b)as to the applicant’s claim to fear persecution on account of his politics, the Tribunal noted that:
i)the applicant’s discussion of his political activities as a student disclosed a lack of detailed awareness of the political process in Bangladesh which struck the Tribunal as inconsistent with what one would reasonably expect of a person involved in such campaigns;
ii)the applicant’s claims about his campus’s chapter of the Chattra League contained discrepancies and appeared confused in certain respects, including that he greatly exaggerated the size of the membership of the Chattra League and seemed confused as to whether it was a ban in 2001 by the caretaker government or a ban by the BNP that ended his career as Chattra League president;
iii)although the Tribunal accepted that the applicant held the claimed posts with his campus’s chapter of the Chattra League, it found his evidence demonstrated that his interest was not well-informed, detailed or serious, that he did not devote much attention to politics or make himself aware of the issues or of his party’s views on important matters;
iv)the applicant was confused between the terms “minister” and “member of parliament”. This evidence was consistent with the Tribunal’s finding that his involvement with politics was brief and limited to his now long-past time as a student and that during this time he did not learn much;
v)he was vague and unimpressive in his evidence about having pursued the named BNP figure Chowdhury and this was significant as it was this activity that resulted in the applicant being pursed by the BNP on a monthly basis from 2001 to the present;
vi)he was also vague and lacked reliability concerning when certain relevant political conditions existed in Bangladesh and the Tribunal was convinced that his interest in politics was very short-lived;
c)the Tribunal considered whether the applicant’s past political involvement may have ended due to harassment and fear of persecution, but observed that the applicant’s evidence of such harassment was so dependent on non-factual and/or far-fetched political conditions that the Tribunal did not draw such a conclusion;
d)nor did it consider that the alleged incident at the wreath laying on 16 December 2001 involved the applicant being targeted as an individual or that it culminated in threats made to him as an individual. These conclusions were based on the chaos of the occasion and the fact that this claim depended on the applicant having been the political campaigner he alleges, which the Tribunal did not accept;
e)the Tribunal dismissed as a fanciful concoction the applicant’s claim about the BNP’s visits to his family home each month since late 2001;
f)the Tribunal gave no weight to the applicant’s claims about the BNP having filed a false claim against him over the alleged possession of firearms because it did not accept that the applicant was the individual foe of the BNP as he claimed, coupled with the fact that he was able to travel to and from India and Thailand without being stopped by authorities over the firearms charges. Indeed, the Tribunal observed that in returning to Bangladesh in November 2005 the applicant behaved as if the arrest warrant did not exist;
g)the Tribunal did not accept that the applicant became a monk to avoid harm in the wider community, or that he travelled abroad at any stage to seek refuge from Convention-related persecution in Bangladesh. It found that he returned for reasons unrelated to aspirations to be allowed to be politically active;
h)the Tribunal found the applicant’s conduct in prioritising his studies in Thailand rather than applying for protection in Australia on his first visit here did not reflect the claim of a person fleeing persecution. It formed the view that his application was disingenuous and perhaps an afterthought highly inconsistent with what would be reasonably expected of a person who was conscious of a great threat to his life over many years;
i)the Tribunal found on the evidence before it that the applicant was overwhelmingly an unreliable witness; and
j)although the Tribunal accepted that the applicant was involved with the Awami League when he was a student, it found his past political activities to have been insignificant and that he is no more than another voter awaiting the election which the caretaker government has renewed its commitment to allow.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The Tribunal failed to accord procedural fairness.
(2)The Tribunal failed to exercise the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.
(3)The Tribunal member failed to consider the comments by Lee J, in WAHP v from Karanakaran v Secretary for the Home Department [2000] 3 ALL ER 449 at 469-470 where Brooke L’J’ with whom Robert Walker L.J. concurred:
“For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk] of persecution for a convention reason if any asylum is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.”
At the hearing on 2 December 2008 the applicant raised the following additional matters:
a)because of his speech difficulty the Tribunal had allowed him two additional weeks to clarify his evidence and he did not know whether his lawyer had submitted anything further;
b)the Tribunal did not believe that he was a member of the Chattra League;
c)a serious situation would exist after the forthcoming elections in Bangladesh and he would be killed were he to return;
d)the Tribunal did not deal with the injuries he had suffered to his hand and to his arm;
e)the Tribunal did not deal with incidents in his home area in respect of which he could not get protection;
f)impliedly, the Tribunal did not deal with the events on 26 August 2006 when the Bangladeshi army attacked Buddhists, torturing and burning houses; and
g)the Tribunal was unable to understand his statements and oral evidence because of the head injury he had suffered.
Failure to accord procedural fairness
The first allegation contained in the amended application was particularised as follows:
(a)The Tribunal erred in law amounting to jurisdictional error in finding that the applicant’s past political activities were insignificant … … … the Tribunal is not satisfied that the applicant would face a real chance of persecution at the hands of the current caretaker regime and/or its instruments, such as the military, now or in the reasonably foreseeable future;
(b)The Tribunal failed to find that the applicant faced and continued to face significant discrimination is an error in law amounting to jurisdictional error;
(c)The Tribunal failed to perform the duty imposed on it by the Migration Act (section 424 (1)).
The first of the particulars to this allegation is no more than a challenge to the Tribunal’s factual finding that his political activities had been insignificant and its ultimate conclusion on the merits that he did not have a well-founded fear of persecution for a Convention reason. In judicial review proceedings such as these, such factual findings and conclusions on the merits of a review application are not ones which can be reviewed. The role of the Court is to declare and enforce the law which governs the Tribunal’s operations. The Tribunal’s function is, operating within the law, to determine the facts of the matter and to reach a conclusion on the merits of the application before it. If, operating within the law, the Tribunal arrived at incorrect findings of fact or a finding on the merits which is open to it, although not necessarily the only finding which was available, that is not a matter reviewable by the Court. In this matter the Tribunal’s factual finding as to the level of the applicant’s political involvement and its ultimate conclusion were open to it and disclose no want of procedural fairness as alleged. Consequently, no jurisdictional error is disclosed by the first particular to the first allegation.
For the reasons given in connection with the first particular to the first allegation, the second particular also fails to disclose jurisdictional error on the Tribunal’s part.
As to the third particular, s.424(1) of the Migration Act 1958 (“Act”) provides:
424 Tribunal may seek additional information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
The applicant has not identified what information obtained by the Tribunal was not considered by it. It is not apparent that any information was sought by the Tribunal other than independent country information. Nor is it apparent that the Tribunal obtained independent country information other than that which is referred. In this connection, particular notice must be had to para.21 of the Tribunal’s decision (CB 169) where it refers to having had regard to material referred to in the delegate’s decision and material available to it from “a range of sources”. Absent proper detail having been set out in this particular, the allegation that the Tribunal breached s.424(1) of the Act cannot be made out.
Failure to exercise power under s.427(1)(d) of the Act
The second ground pleaded in the amended application was particularised as follows:
The Tribunal was put on notice by his Solicitor and Migration Agent Kerry Murphy that the applicant was suffering from Post Traumatic Stress Disorder (PTSD) and severely traumatised by his experiences and the assaults, injuries and the killing of the Buddhist Abbott in his area and it was unfair for the Tribunal to put the obligation on the applicant at the hearing to identify all of his claims, with out exercising the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.
Section 427(1)(d) provides:
(1)For the purpose of the review of a decision, the Tribunal may:
…
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
Contrary to the allegation in the amended application, rather than asserting that the applicant suffered from post-traumatic stress disorder, the letter from the applicant’s solicitor dated 30 June 2008 merely says “I am of the view that [the applicant’s] tendency to rush answers and appear to not comprehend the question are consistent with a traumatic experience such as the assault he stated occurred to him in late 2001” (CB 120). The matter was not put as high as the applicant now alleges in his amended application and there is nothing apparent to support the allegation made in the amended application or otherwise to suggest that an occasion arose for the Tribunal to consider exercising its discretion under s.427(1)(d). For instance, no request was made by the applicant that he be medically examined with a view to determining whether his answers were affected by those experiences he alleges he suffered.
For these reasons, there is basis to conclude that the Tribunal was called upon to utilise s.427(1)(d) or that any lack of action in respect of that paragraph represents a miscarriage of discretion.
Failure to consider Karanakaran v Secretary of State for the Home Department
The reference to the decision of Lee J would appear to be a reference to WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87. There, at [32], his Honour said:
The matters the Tribunal described as implausible were not claims disproved by proven facts nor events so contradicted by commonsense as to be able to be dismissed as possible occurrences. The Tribunal engaged in speculation as to what a more likely course of events may have been but had no basis on which it could say that the events described in the letter could not have happened. The Tribunal may not have been persuaded that events occurred as recited in the letter but the Tribunal had no material on which it could convert such a doubt into a positive finding that the events had not occurred. Accordingly, the material set out in the letter had to be taken into account by the Tribunal in determining whether there was a chance that the appellant may suffer future persecution. …
At [34] his Honour quoted from the reasons for judgment in Karanakaran’s case.
The applicant has not identified what matters the Tribunal may have excluded from its consideration on the basis that “they probably did not occur”, to apply the formula used in Karanakaran’s case. Rather, the Tribunal appears to have considered every aspect of the applicant’s detailed allegations and to have reached a conclusion after having done so. In the absence of proper particulars of this allegation, it cannot be made out.
Further submission permitted following Tribunal hearing because of applicant’s speech difficulty
At CB 120 there appear the written submissions made by the applicant’s solicitors dated 30 June 2008, following the Tribunal hearing. These have also been referred to above at [16]. There is nothing in that document, nor in the Tribunal’s decision record, to suggest that the applicant was allowed additional time to make submissions by reason that he had suffered a head injury. Rather, the Tribunal’s decision reveals at paras.90-92 (CB 180-181) that the applicant was given additional time in order to provide evidence linking the assassination of Sheikh Mujibur Rahman to the BNP and/or JEI.
The applicant’s allegation that he was provided additional time to make submissions because he had suffered a head injury is not made out on the facts.
Membership of Chattra League
In support of his allegation that he was a member of the Chattra League, the applicant displayed to the Court a poster which appeared to bear his picture. It was not submitted that this poster had been submitted to the Tribunal and it does not appear that it was. That being so, this allegation is no more than one disputing the factual findings made by the Tribunal which cannot amount to jurisdictional error on the Tribunal’s part. But in any event, the applicant misunderstands the Tribunal’s decision because at para.156 of that decision (CB 201) the Tribunal expressly accepted that the applicant had been elected vice president of his college campus’s chapter of the Chattra League in 2000. For this reason, this allegation lacks a factual foundation.
Applicant will be killed if he returns to Bangladesh
In this Court the applicant relied on forthcoming elections in Bangladesh which appear not to have been raised with the Tribunal. Those elections not having been raised with the Tribunal, it is not open to this Court to consider whether any issue associated with them might demonstrate jurisdictional error.
Otherwise, this allegation does no more than seek to challenge the Tribunal’s factual conclusion on one of the applicant’s essential claims, namely that he fears persecution in Bangladesh because of his political beliefs and affiliations. For the reasons already given, the Court is unable to review this aspect of the Tribunal’s decision. This ground does not disclose jurisdictional error.
Tribunal did not deal with injuries to hand and arm
When questioned by the Court, the applicant conceded that he had not shown the Tribunal the injuries he says he has suffered to his hand and his arm. In the circumstances where the injuries were not brought to the Tribunal’s attention, it cannot be criticised for not having turned its mind to them.
Tribunal did not deal with incidents in applicant’s home area
A review of the Tribunal’s decision record discloses no mention by the applicant of events now alleged by him to have occurred in this local area. The applicant has tendered no evidence tending to contradict the accuracy of the Tribunal’s decision record and, in the circumstances, I cannot conclude that there is a factual basis for this allegation.
Tribunal did not deal with events of 26 August 2006
Contrary to this allegation, the event in question in Mahalchori on 26 August 2003, which is mentioned in para.18 of the applicant’s statutory declaration of 30 May 2008 (CB 114 – 117), was specifically referred to in para.38 of the Tribunal’s decision (CB 173). It was also implicitly dealt with in para.151 of the Tribunal’s decision where it said:
Overall, the Applicant’s claims about fearing persecution in Bangladesh for reasons of religion are unimpressive. The Tribunal does not accept on the evidence before it that the Applicant faces a real chance of persecution in his home region, in particular, or elsewhere in Bangladesh for reasons of being a Buddhist. (CB 200)
For these reasons, I find that the Tribunal did not fail to have regard to the applicant’s evidence concerning the events at Mahalchori on 26 August 2003.
Tribunal did not understand because applicant had head injuries
This issue was considered by the Tribunal at para.171 of its decision where it said:
The Tribunal has considered the Applicant’s claim that the trauma of being attacked on 16 December 2001 has led to his having difficulty with dates and details. Although the Applicant has provided a list of items purchased on 17 December 2001, the tribunal does not accept that he suffered significant injury on that day, although he may well have a scar from that episode on the back of his head. In any event, having acknowledged that he provided many incorrect and misleading dates, the Applicant did not correct any of them, say, by providing a plausible and consistent sequence of causes and effects to “correct” his errors regarding dates. In addition, the Applicant did not even remain committed to “trauma” as a reason for his errors, because he later said these arose due to his having to rush the drafting of his protection visa application and due to his being nervous about his case. (CB 205)
The assertion that the applicant has difficulty remembering dates and events because he had suffered a head injury arises out of the 30 June 2008 submission of the applicant’s solicitor which enclosed a statutory declaration of the applicant made on 27 June 2008 where the allegation was made that since the assault he had difficulty with dates and events. The applicant did not submit at the Tribunal hearing, or in his subsequent submission and its enclosures, that his head injury had caused the Tribunal to fail to understand him. Rather, the submission was to the effect that the head injury made it difficult for the applicant to respond accurately or appropriately, a matter dealt with by the Tribunal in the passage quoted above.
For these reasons, the allegation made at the hearing in these proceedings lacks a factual foundation and is not made out.
Breach of s.91R(3)
In his written submissions the first respondent raises an additional issue for consideration by the Court, namely whether the Tribunal’s decision discloses a breach of s.91R(3). That subsection provides:
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The first respondent refers, first, to the following passage in the Tribunal’s decision:
The Tribunal notes the material submitted by the Applicant about his dedication in various countries and at different times of his life to Buddhist community interests, such as the letter from the Bangladesh Australia Buddhist Society Inc, saying that he has been a valuable member of the society in Australia. However, whilst having no concerns as to the genuineness of this material, the Tribunal gives it little weight overall, beyond the material supporting the Applicant’s claim to be a Buddhist, and a sometime Buddhist scholar and monk. (CB 200)
The first respondent observes that the Tribunal accepted that the applicant’s conduct in Australia led to him being described as a valuable member of the Australian Buddhist Society and that the Tribunal had regard to this conduct when reaching its decision. The first respondent’s submission, which I accept, is that the Tribunal must be taken to have implicitly found in this case that the applicant’s conduct was engaged in otherwise than for the purposes of strengthening his claim to be a refugee. This conclusion is supported by the Tribunal’s finding at para.140 of its decision:
The Tribunal accepts that the Applicant is a Buddhist and that he lived as a Buddhist monk in Bangladesh and in other countries during the current decade. (CB 198)
That is to say, it can be concluded that the Tribunal did accept that the applicant was a genuine Buddhist and truly a Buddhist monk and that his conduct in Australia was an unexceptional manifestation of his genuine adherence to Buddhism.
Indeed, given the Tribunal’s express rejection of various of the applicant’s other allegations, had it had any doubts concerning whether the applicant’s conduct in Australia was undertaken for the purposes of assisting his refugee claim, it undoubtedly would have said so.
Moreover, the conclusion that the Tribunal impliedly accepted the genuineness of the applicant’s involvement in Buddhist activities in Australia and that they were not undertaken to strengthen his claim for a protection visa is borne out by the second passage to which the first respondent has drawn the Court’s attention. That passage refers to the applicant’s failure to make a protection visa application when he first visited Australia between 28 October 2006 and 26 November 2006. In this regard, the Tribunal said:
The Tribunal finds that the Applicant did not behave like a person fleeing persecution when he first visited Australia and did not seek protection here on that occasion, instead pursuing a desire to continue his studies in Thailand. His lodgement of a protection visa application on his second visit here after prioritising study in Thailand leads the Tribunal to the view that his application was disingenuous, and perhaps even an afterthought, highly inconsistent with what one would reasonably expect of a person who for many years was conscious of a great threat to his life. The Tribunal is confident that the Applicant’s poor performance as a witness of truth in this matter supports this finding. (CB 205)
In this regard, the first respondent submitted that the Tribunal also implicitly found that the applicant had not engaged in that conduct (namely, failing to seek protection on his first visit), in order to strengthen his claim to be a refugee as, on any view, that conduct was not capable of strengthening such a claim and the Tribunal plainly viewed it in that way. I agree. Although, as was said in SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105 at [22], inaction can constitute conduct within the meaning of s.91R(3), this is not the sort of inaction to which the Full Court was referring. There, their Honours were referring to conduct such as seen in SZKBK’s case, which forms part of the decision in SZJGV. There, the Tribunal erred when reaching a conclusion that the applicant was not a committed Christian, having regard to the applicant’s failure to attend church with a regularity sufficient to indicate her commitment as a Christian, in circumstances where the Tribunal purported to disregard the applicant’s religious practice in Australia under s.91R(3).
I therefore do not conclude that the Tribunal breached s.91R(3) of the Act.
Conclusion
For the above reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 12 December 2008
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