SZMTA v Minister for Immigration

[2016] FCCA 1329

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZMTA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1329

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings against the applicant – whether the Tribunal took irrelevant considerations into account – whether the Tribunal’s decision was so unreasonable that no reasonable decision maker could have made it – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 476

Cases cited:
SZGIZ v Minister for Immigration & Citizenship & Anor (2013) 212 FCR 235.

SZVCH v Minister for Immigration & Border Protection and Anor [2015] FCCA 2950

Applicant: SZMTA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2768 of 2015

Judgment of: Judge Street

Hearing date: 1 June 2016

Date of Last Submission: 1 June 2016

Delivered at: Sydney

Delivered on: 1 June 2016

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco & Mr S Lawrence

Solicitors for the Applicant: Shelly Legal

Counsel for the First Respondent: Ms R Francois

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The amended application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2768 of 2015

SZMTA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 17 September 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australia on 26 January 2008. On 6 March 2008 the applicant lodged his first protection application.

2. On 16 April 2008 that application was refused.  On 19 August 2008 that refusal was affirmed by the Refugee Review Tribunal.  On 18 February 2009 the Federal Court dismissed the applicant’s application for review.  On 22 May 2009 a Full Court of the Federal Court dismissed the applicant’s appeal.  On 1 October 2009 the High Court refused the applicant relief.  The applicant sought ministerial intervention and on 4 October 2012 lodged a second application for protection on the grounds of complementary protection, consistent with the decision of SZGIZ v Minister for Immigration & Citizenship & Anor (2013) 212 FCR 235.

3. In summary, the applicant claims to fear harm based on his status as a Buddhist and preacher and that he suffered as a consequence at the hands of the Islamic extremists and governmental authorities.  By letter dated 23 February 2015 the applicant was invited to attend a hearing on 8 May 2015.  The applicant appeared on that date to give evidence and present arguments.  Prior to that hearing date, the applicant’s representative provided further information to the Tribunal and after the hearing further information was provided to the Tribunal, including a statutory declaration and a consultant psychiatrist report expressly referred to in the Tribunal’s reasons.

4. The Tribunal also referred, in evaluating the applicant’s credit, to a psychosocial report dated 4 April 2010 and the post-hearing material in assessing the applicant’s credibility.  The Tribunal found the applicant was not a witness of truth and was not satisfied the applicant had told the whole in relation to critical aspects of his claims.  The Tribunal provided reasons in support of that adverse credit finding.  The first reason referred to the concerns in respect of the applicant failing to mention in his oral evidence a number of claims made in his written statement.

5. The Tribunal raised with the applicant the written statement referring to a claim that terrorists came to know that the applicant was alive and came to his home and warned his family members that if he was involved in activities against them his family will face the same consequences as 11 persons burnt to death in an adjacent village.  The Tribunal notes that, in response, the applicant told the Tribunal that, although he remembers that very well during the discussion, he forgot to mention it and does not know why.

6. The Tribunal noted that it had taken into account the post-hearing statutory declaration providing an explanation that during the hearing the applicant was extremely nervous and anxious and it went right out of his head.  The Tribunal noted that the applicant asserted he did not tell this to the Tribunal in his oral evidence, which had further aggravated his mental stress.  During the hearing the Tribunal’s reasons also recall that it noted the applicant’s statement about never going back to his village and that they followed him everywhere with a view to killing him.

7. In response, the applicant told the Tribunal it was true he did not go back to the village. When the applicant was asked why he did not mention that he was followed everywhere with a view to killing him, the applicant told the Tribunal because he was explaining his uncle’s incident and therefore did not mention it.  The Tribunal referred to taking into account the applicant’s post-hearing declaration.  It states that his enemies followed him around.  During the hearing, the Tribunal also asked the applicant whether terrorists were following him everywhere with a view to killing him and the applicant told the Tribunal that he was hiding so they could not find him.

8. The Tribunal noted that the applicant told the Tribunal during the hearing that a particular attack happened in December 2003 and that he spent some time in hospital and stayed in hotels and a temple and at different relatives’ homes until he left Bangladesh in April/May 2004.  The Tribunal noted the applicant has not made any claims that he experienced further attacks or incidents between the time he was attacked on 3 December 2003 and when he left Bangladesh in April/May 2004.

9. The Tribunal again referred to taking into account the applicant’s statutory explanation, asserting it was true that enemies followed him around and that he stayed at different places and then went to India to save his life.  The Tribunal expressly refers to having taken into consideration the effects of nerves and anxiety of the applicant in giving evidence and in relation to his ability to recall details and incidents consistently.  The Tribunal also referred to taking into account the letter from Mr Ryan and accepting that the applicant described significant psychological stress over many years.

10. The Tribunal accepted that the applicant had been previously diagnosed as having an adjustment disorder and anxiety and depressive symptoms and had developed hypertension and takes medication.  The Tribunal accepted that the psychological state had worsened and that the applicant reports symptoms consistent with mixed anxiety and depressive illness.  The Tribunal also noted the reports in relation to the memory and attention problems, with difficulty consistently giving adequate accounts of himself.

11. It was in these circumstances that the Tribunal noted that it did not draw any adverse credibility conclusion because the applicant failed to mention in his oral evidence that after the attack on 3 December 2003 that a terrorist visited his home and warned his family about future consequences if the applicant was involved in activities against him.  The Tribunal also noted it did not draw any adverse credibility conclusion because the applicant failed to mention that they followed him everywhere with a view to killing him.  The Tribunal continued, however, saying that:

    Nevertheless, the Tribunal is not satisfied the applicant’s responses and/or his medical conditions address the Tribunal’s concerns about the applicant’s written claim that he was followed everywhere by people who had a view to killing him.

12. The Tribunal said the applicant’s responses were confused and contradictory.  The Tribunal explained that inconsistency.  The Tribunal found the applicant’s evidence in this regard inconsistent and contradictory.  The Tribunal was concerned the applicant had fabricated the claim that he was followed everywhere by people who had a view to killing him in order to strengthen his application.  The Tribunal recorded that it considers this reflects poorly on the applicant’s credibility and reliability of his evidence.

13. The Tribunal then turned to the second reason of concern in relation to the applicant’s credibility.  In the course of making the adverse finding in respect of the third ground, the Tribunal has again expressly referred to the post-hearing statutory declaration and was not persuaded by the applicant’s responses in respect of the second ground, which it considered reflected poorly on the applicant’s credibility and reliability of his evidence.  The Tribunal then turned to a third ground in support of the adverse findings of the applicant’s credibility, which again records taking into account the post-hearing submissions.

14. The Tribunal found that the third ground reflected poorly on the applicant’s credibility and reliability of his evidence.  The fourth ground in support of the Tribunal’s adverse credibility findings identified reasons why the applicant’s conduct undermined the plausibility of his claims that he was in danger and feared for his safety at the relevant time and the Tribunal considered that reflected poorly on the applicant’s credibility and reliability of his claims. 

15. The fifth ground raised by the Tribunal was one relating to the applicant telling the Tribunal during the hearing that he feared returning to Bangladesh due to a land dispute.  The applicant told the Tribunal that Muslim fundamentalists had captured his mother’s property in 2009 and that she raised this with the subdistrict municipal officer and had paid money for the return of the land, however the land was not returned.  The applicant told the Tribunal that when his mother attended the land, she had her leg broken and he referred to photographs and told the Tribunal he had previously provided a medical report to the department.  The Tribunal notes that the applicant told the Tribunal his mother’s leg was broken in early 2010.

16. On questioning by the Tribunal, the applicant told the Tribunal that he bought the land for his mother while he was working in 2001.  The Tribunal notes that the applicant told the Tribunal he also has his own land in Bangladesh which he bought in 2001, at the same time he bought the land for his mother, and that he let his uncle grow crops on that land.  The applicant told the Tribunal that this land had also been captured, and a claim had been fabricated that the applicant was illegally occupying the land and this had all happened due to the influence of the local Awami League figure.  The applicant told the Tribunal that they are taking his family’s lands one after another. 

17. When asked why the applicant could not pursue this matter through the courts, the applicant told the Tribunal that they have power and terrorist groups and if he tries to pursue his rights, his family members will be harmed or killed.  The applicant told the Tribunal that his uncle had been threatened very recently, although he was unable to give an exact date.  The applicant also told the Tribunal that he fears if he took the matter to court, he would be killed.  The Tribunal’s reasons record the applicant referred to a number of documents provided to the department and Tribunal in relation to land ownership and mediation of disputes about land ownership. 

18. During the hearing, the Tribunal’s reasons record raising with the applicant its concern in relation to what the applicant told the Tribunal about his mother’s leg when she visited the land in dispute in 2010, yet the applicant had not previously mentioned that matter in his written claims.  The Tribunal made reference to the applicant’s statutory declaration in 2014 relating to the land dispute, and subsequent statutory declaration of 5 May 2015 and also referred to the letter forwarded to the department dated 26 April 2014 noting the applicant’s mother had tried to visit the land and was attacked and her leg was injured. 

19. The Tribunal also made reference to other letters and written statements and then made the finding that it was prepared to accept the applicant’s mother’s leg was injured in 2010, noting that the applicant had not consistently raised that claim that his mother’s leg was injured in an incident relating to the land dispute.  The Tribunal said that, nevertheless, it had taken into account the post-hearing submissions, and applicant’s medical conditions, and Mr Ryan’s report and made no adverse credibility finding, because the applicant had not consistently raised that particular claim in relation to his mother’s leg. 

20. The Tribunal went on to identify the documents that were provided to the Tribunal and again recorded that it would take it into account the applicant’s post-hearing statutory declaration asserting that the documents were correct and that there were three pieces of land, one purchased in the applicant’s mother’s name, and the other purchased in the applicant’s name and that there are more lands that his mother bought.  The Tribunal noted the reference in the post-hearing statutory declaration where the applicant said:

    Due to that confusion and stress, I made mistake when mentioning about the year the land was purchased in my name. 

21. The Tribunal identified that it was concerned that the applicant did not mention during the hearing that there were three pieces of land.  The Tribunal made reference to the applicant initially telling the Tribunal that he bought land in 2001 at the same time as he bought land for his mother.  The Tribunal noted that the applicant told the Tribunal earlier in the hearing that he had a job in Bangladesh until 2001 and after that he became a monk living in the temple until he was married in 2004, after which time he lived with relatives, and in hotels and the temple until he left Bangladesh.  The Tribunal recorded that the applicant had told the Tribunal that the applicant borrowed money from relatives to live over this period, and while he was in the temple he did not have to pay anything. 

22. The Tribunal then continued to note that the applicant’s initial oral evidence that he bought the property in 2001 was inconsistent with the documents that he had provided in support of his claim to his own land and to be in a land dispute with an influential person.  The Tribunal noted that it raised some doubts about the genuineness of the property documents provided to the Department and the Tribunal during the hearing, but had taken into account the post-hearing statutory declaration asserting that the documents were correct and that three pieces of land were involved. 

23. The Tribunal noted that the applicant’s initial oral evidence was that the land was purchased for himself and his mother in 2001.  The Tribunal recorded that the applicant made no mention of a third property or other land purchases to the Tribunal during the hearing.  It was in those circumstances that the Tribunal recorded that it raised concerns that the clear selling deed of land indicated a purchase in 2003 and that the applicant had failed to mention a third property or other land purchases.

24. The Tribunal noted that the applicant had told the Tribunal he made a mistake about the purchase date.  The Tribunal proceeded to identify that, while it was prepared to accept that the documents provided by the applicant are genuine and indicate the applicant owned some land, the Tribunal did not accept that the documents provided by the applicant overcome the credibility concern.  It is in those circumstances, in relation to the fifth ground, that the Tribunal recorded it found the applicant’s evidence about the purchase and ownership of land had changed considerably over time.  The Tribunal said that that reflected poorly on the applicant’s credibility and reliability of his claims. 

25. The Tribunal then proceeded to make adverse findings in relation to the applicant’s credibility in respect of his claims and found that it did not accept that the applicant will be unable to practice their religion in Bangladesh and that there is not a real risk the applicant will suffer significant harm if he returned to Bangladesh now or in the reasonably foreseeable future. The Tribunal referred to having considered the applicant’s claims individually and cumulatively and, for the reasons given by the Tribunal, it was not satisfied that there was a real risk the applicant will be arbitrarily deprived of his life, or the death penalty would be carried out. The Tribunal was not satisfied that there was a real risk the applicant would be subject to torture, or cruel or inhumane treatment or punishment, or be subjected to degrading treatment or punishment, if he returned to Bangladesh now or in the reasonably foreseeable future. The Tribunal found it was not satisfied 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 he will suffer significant harm. It was in those circumstances the Tribunal found that the criteria under s.36(2)(aa) were not satisfied and affirmed the decision of the delegate.

26. The grounds of the amended application are as follows:

    Ground 1: Error of Law - The tribunal erred, amounting to jurisdictional error, by failing to take a relevant consideration into account.

    Particulars

    The evidence suggested the applicant suffered from various medical problems, including reports of, 'severe anxiety-depression [CB 93], 'lack of concentration and poor memory' [CB96], 'forgetfulness' [CB 97], 'mixed anxiety/depressive illness' [CB 314] and 'memory and attentional problems with difficulty consistently giving an adequate account of himself [CB 314].

    This evidence was accepted and the applicant's medical conditions were considered in his favour with respect to certain inconsistencies in his account, at para [52] - [53) and [71].

    The tribunal however failed at para [72] – [75] to consider the applicant's medical conditions as a possible explanation for the inconsistencies in the applicants account in respect of the land dispute and land ownership.

    The adverse credibility findings, of which the findings at para [75] were a material component, were used adversely to the applicant's claim, para [43], [76], [85] and [88].

    Ground 2: Error of Law - The tribunal erred, amounting to jurisdictional error, by making a finding so unreasonable no reasonable tribunal would have made it.

    Particulars

    The evidence suggested the applicant suffered from various medical problems, including reports of, 'severe anxiety-depression [CB 93], ' lack of concentration and poor memory' [CB96], 'forgetfulness' [CB 97], 'mixed anxiety/depressive illness' [CB 314] and 'memory and attentional problems with difficulty consistently giving an adequate account of himself' [CB 314].

    The applicant's medical conditions were considered in his favour with respect to certain inconsistencies in his account, at para [52] – [53] and [71].

    The tribunal however failed at para [72] – [75] to have regard to the applicant's medical conditions as a possible explanation for the inconsistencies in the applicant’s account in respect of the land dispute and land ownership.

    There is no logical or rational explanation for why the inconsistencies identified by the tribunal were dealt with differently in this way.

    The adverse credibility findings made in this illogical and irrational way were material to the rejection of the applicant’s claim for protection.

1. Counsel for the applicant sought an adjournment in order to advance the pursuit of a third ground, in essence, seeking to advance reliance upon the decision of Driver J in SZVCH v Minister for Immigration & Border Protection and Anor [2015] FCCA 2950 and referred to a decision currently reserved by the Full Court. This Court has earlier given reasons identifying that the decision in SZVCH supra was clearly wrong, and it was in those circumstances that this Court refused to grant leave to the applicant to raise the third ground and refused an adjournment pending the determination of the Full Court’s decision in relation to that case.

2. In relation to ground 1 in the application, Mr Bodisco of counsel took the Court to the detail of the psychosocial report dated 4 April 2010, as well as taking the Court to the detail of the applicant’s statutory declaration provided in the post-hearing submission and the report by the consultant psychiatrist dated 20 May 2015.  It is apparent from the Tribunal’s reasons that the Tribunal took into account the applicant’s alleged psychiatric condition and the reports referred to in the adverse findings made by the Tribunal.  Mr Bodisco of counsel focused specifically on para.75 of the Tribunal’s reasons in seeking to advance that the Tribunal had not taken into account the applicant’s condition in evaluating the applicant’s credit.  Mr Bodisco of counsel sought to make that proposition good by referring to earlier findings where the Tribunal had not been prepared to make an adverse credibility finding.

3. The Tribunal’s reasons are not to be read with a keen eye for error and are to be read as a whole.  It is apparent from the Tribunal’s reasons relating to the fifth ground that the Tribunal has expressly referred to the post-hearing submission material and there is no proper basis to contend that the Tribunal failed to take into account a relevant consideration.  Ground 1 fails to make out any jurisdictional error. 

4. In relation to ground 2, Mr Bodisco of counsel sought to argue that the decision was the subject of inconsistent findings in relation to the applicant’s credit, and that the adverse finding in relation to the applicant’s credit was unreasonable, and, in particular, focused on para.75 and the reference by the Tribunal to the fact that the applicant made no mention of a third property as identified in the statutory declaration. 

5. Mr Bodisco of counsel sought to argue that this was a case where, in para.75, the Tribunal had made an inconsistent finding in relation to criticising the applicant’s credit in respect of the absence of mention of the third property when compared to the reasoning of the Tribunal, specifically in relation to the mother’s leg injury, where the Tribunal said that the applicant had not consistently raised that claim and made no adverse credibility finding.  There is a clear difference between not consistently raising a claim and making no mention of the third property. 

6. The adverse finding by the Tribunal in relation to the applicant’s credit was open on the material before the Tribunal.  The adverse finding in relation to credit, specifically in relation to the third property, cannot be said to be unreasonable and cannot be said to lack an evident and intelligible justification.  Ground 2 fails to make out any jurisdictional error.  The amended application is dismissed. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 June 2016