SZMTA v Minister for Immigration and Citizenship
[2009] FCA 623
•22 May 2009
FEDERAL COURT OF AUSTRALIA
SZMTA v Minister for Immigration and Citizenship [2009] FCA 623
SZMTA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 189 of 2009
NORTH J
22 MAY 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 189 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMTA
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
22 MAY 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 189 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMTA
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE:
22 MAY 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 18 February 2009. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) signed on 30 July 2008. In that decision the Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), not to grant the appellant a protection visa.
The appellant is a citizen of Bangladesh who follows the Buddhist religion. He claimed a fear of persecution on the grounds of his religion. In support of his claim he explained his involvement in Buddhist organisations from the time he was a student. He was a member of the Buddhist Students’ Union and later became the General Secretary of the College Students’ Union during his tertiary education.
He completed an undergraduate degree and then a Master’s degree, the latter at the University of Chittagong. During this period he was active in defending the rights of Buddhists against discrimination. He explained that during his time at the University of Chittagong he organised protests against fundamentalist Islamic students and spoke of conflicts between student activists on campus. Whilst at the University of Chittagong he claimed to have become a frontline activist and Organising Secretary of the Chittagong University Buddhist Students’ Union. In this capacity in 1991 he supported the Awami League in the elections. This, he said, antagonised the supporters of the Bangladesh Nationalist Party (the BNP).
The appellant claimed that he had applied to become a member of the police force but was not appointed as a result of religious discrimination. He said he took the matter to court and succeeded but the BNP government refused to implement the court’s decision. He said in March 1998 he experienced communal violence by fundamentalist Muslims in the course of celebrating a Buddhist religious festival. He was there assaulted and injured and his maternal uncle was killed. He said the authorities did not take any action in relation to the incident.
After his university studies he enrolled in religious studies and completed that course in 1995. Between 1996 and 2001 he worked in private industry. Then in 2001 he was ordained as a monk and worked in that capacity until 2004. He claimed to have been assaulted on 3 December 2003 following a protest, which he organised, against the killing of a Hindu family in his locality. He claimed that he was stabbed in the stomach on this occasion. He said that the killers of the Hindu family discovered that he had survived and had threatened his family members.
In 2004 he left Bangladesh for South Korea and lived at the Bong Jeong Buddhist Temple, returning to Bangladesh on a number of occasions for relatively long periods. He said he returned in disguise on his return to Bangladesh so he would not be recognised. Nonetheless, on his last visit in December 2007 he said that his opponents came to know of his visit.
The Tribunal rejected the appellant’s application. It found that the appellant was a witness of low credibility who sought to associate himself with particular groups or incidents in order to establish the profile of a refugee but gave misleading accounts of the nature and circumstances of past incidents and deliberately blurred the distinction between Barua and tribal Buddhists.
The Tribunal gave four primary reasons for rejecting the application. These reasons will be examined in greater detail later in dealing with some of the arguments raised on the appeal. However, in summary, the four primary reasons for the rejection of the appellant’s claim were as follows. First, the appellant had lived in South Korea for about three and a half years and although South Korea is a signatory to the Refugees Convention the appellant made no effort to apply for refugee status there. Second, the Tribunal found that the appellant’s three return trips to Bangladesh for periods of several months at a time demonstrated that he did not fear persecution there. Third, the Tribunal found that the appellant’s family and personal circumstances, including his level of education, financial resources and land ownership, did not support the claim that he and his family suffered discrimination amounting to persecution as a result of their Buddhist religion. Finally, the Tribunal found that the experiences and fears of the appellant were inconsistent with country information. The Tribunal rejected the appellant’s argument that all Buddhists including non-tribal Buddhists experience systematic persecution. Rather, country information showed that there were some isolated violent incidents the exact cause of which was uncertain but could have involved either religious or unrelated issues such as property disputes.
The Tribunal then dealt in detail with each of the separate factual allegations made by the appellant. These were dealt with from [82] to [89] of the decision of the Tribunal. In view of the matters raised on the appeal it is unnecessary to traverse these issues in detail. So far as relevant they will be referred to in my reasoning later in this judgment.
The appellant lodged an application in the Federal Magistrates Court for review of the decision of the Tribunal. He relied upon two grounds which related to a letter provided by Ms Koo In Chook, an employee of the temple in South Korea where the appellant stayed between 2004 and 2007. Those grounds were:
(1)Koo In Chook gave corroborative evidence of the applicant’s claim that “Muslim fundamentalists attempted to kill him” in Bangladesh. The Tribunal failed to have regard to the corroborative evidence in considering whether the applicant’s claim was true, giving rise to jurisdictional error.
(2)Koo In Chook gave corroborative evidence of the applicant’s explanation as to why he did not apply for a refugee visa in South Korea. The Tribunal erred in dealing with the corroborative evidence, giving rise to jurisdictional error.
The Federal Magistrate rejected ground 1 by reference to the reasons of the Tribunal. The Tribunal said at [81]:
He [the appellant] stated, however, that they [the temple management] knew that he feared persecution in Bangladesh. The letter from Ms Chook, a former temple employee, supports this claim. The Tribunal, whilst mindful that the applicant may have faced some language problems in Korea and been reluctant to impose on the temple, finds it difficult to believe that the temple authorities or employees knew that he feared persecution yet declined to explore options for protection or to otherwise avoid serious harm. Ms Chook’s statement - to the effect that she placed the temple’s ‘reputation and credibility’ over the applicant’s welfare - does not displace this concern. The Tribunal finds the applicant’s explanations unconvincing.
The Federal Magistrate found that the Tribunal knew that Ms Chook’s statement supported the appellant’s claim, that the Tribunal stated it did not believe that the temple would have behaved in the manner contended for by the appellant had it known that he faced persecution and was not satisfied with Ms Chook’s evidence in this regard. The Federal Magistrate concluded that it could not be said that the Tribunal ignored or overlooked the evidence. In view of the matters raised on the appeal it is unnecessary to consider the reasons for the Federal Magistrate rejecting the second ground of appeal.
On 6 March 2009 the appellant filed a notice of appeal in this Court against the judgment of the Federal Magistrate. The first ground of appeal was in the following terms:
1. Driver FM failed to find that the Refugee Review Tribunal erred in law by not considering corroborative evidence provided by the refugee claimant that he was mistreated.
Particulars
Driver FM failed hold that the Second Respondent failed to consider corroborative evidence provided by the applicant and did not give a chance to comment on the concerns the second respondent had in relation that corroborative evidence.
This ground of appeal re-agitates the matter determined by the Federal Magistrate in the first ground of appeal in the Federal Magistrates Court. It raises an additional issue in the particulars, namely that the Federal Magistrate did not give the appellant a chance to comment on the concerns over the corroborative evidence. This ground was not raised before the Federal Magistrate.
The second ground of appeal in this Court has a relationship to the particulars in the first ground and reads as follows:
2. Driver FM failed to hold that the second respondent is in breach of issues of natural justice.
Particulars
The Second respondent did not inform in writing the concerns it had in relation to the corroborative evidence.
In order to allow the matter to be raised for the first time on appeal the Court would need to be satisfied that it is expedient in the interests of justice for the matter to be raised and argued on appeal. The first respondent opposes any application by the appellant to raise the matter on the appeal. I accept this argument. The transcript of the proceeding before the Tribunal is not before the Court. The first respondent disputes the issue of whether the appellant was given a chance to comment on the concerns of the second respondent. In view of this factual controversy it would be wrong to allow the matter to be agitated on appeal for the first time.
Furthermore, to the extent that the corroborative evidence referred to is the evidence of Ms Chook, that evidence was provided by the appellant and the material would fall within s 424A(3)(b) of the Migration Act1958 (Cth) (the Act). The Tribunal would thus have had no obligation to raise its concerns with the appellant.
The appellant also filed a written submission in support of the appeal. It raised a series of matters which, again, had not been raised before the Federal Magistrates Court. Thus the same question arises, namely, whether it is expedient in the interests of justice to allow these matters to be now argued. In relation to each I would refuse leave to argue the matter on appeal for the reason that in each case the argument is bound to fail.
First, the appellant contended that the fact that the appellant was a Buddhist monk and not an ordinary member of the Buddhist community in Bangladesh was simply overlooked by the Tribunal. This is as a matter of fact not the case. Three instances will illustrate the point. The Tribunal, for example stated at [80], [82] and [90] the following:
80. The Tribunal accepts that the applicant is a Buddhist, and that he has worked for certain periods as a Buddhist monk.
…
82.The Tribunal accepts, based on country information about the strength of religious identity in Bangladesh and the ease with which the applicant would be identified as a Buddhist (given his name and also his periods of work as a monk), that people readily recognise him as a Buddhist. While this may have resulted in some minor discrimination, the Tribunal does not accept that the applicant’s claimed experiences, individually or cumulatively, amounted to persecution or establish a real chance of prospective persecution.
…
90. The Tribunal considers that the applicant will, if he returns to Bangladesh, be free to resume work as a Buddhist monk, or to seek employment in a field related to his education and past employment… In the applicant’s circumstances - as a Buddhist layman or monk, and taking into account his past employment in business and as a monk, and his past experiences – the Tribunal finds that, while he may face some low-level discrimination, this does not amount to persecution because it does not involve serious harm (s 91R(1)(b) of the Act).
Next the appellant asserted in the written submission that the Tribunal erred in considering that the appellant travelled to Korea and also that he stopped in Bangladesh on his way to Australia. The appellant asserted that the Tribunal had failed to consider that the appellant had disguised himself on his return to Bangladesh. The relevance of these matters was explained by the Tribunal at [81] in two of the four primary reasons for rejecting the applicant’s claim as follows:
First, the applicant lived in South Korea from July 2004 until December 2007, and did not enquire about or seek refugee protection in that country. The applicant explained that he lived in a Buddhist temple. He was not initially aware of the availability of refugee protection in Korea, generally. He did not know until the Tribunal hearing that the Korean Government had granted refugee protection to tribal Buddhists from Bangladesh. The applicant also indicated (particularly in his post-hearing submission) that the Korean temple’s management could not continue to employ him, and had either been ill-equipped or unprepared to explore other options for permanent visas, in case it brought them into disrepute. He stated, however, that they knew that he feared persecution in Bangladesh. The letter from Ms Chook, a former temple employee, supports this claim. The Tribunal, whilst mindful that the applicant may have faced some language problems in Korea and been reluctant to impose on the temple, finds it difficult to believe that temple authorities or employees knew that he feared persecution, yet declined to explore options for protection or to otherwise avoid serious harm. Ms Chook’s statement – to the effect that she placed the temple’s ‘reputation and credibility’ over the applicant’s welfare – does not displace this concern. The Tribunal finds the applicant’s explanations unconvincing. In its opinion, his failure to seek refugee protection in Korea is inadequately explained, and is strong evidence that he did not fear persecution in Bangladesh.
Second, the applicant’s return trips to Bangladesh on three occasions, each for several months, is compelling evidence that he did not fear persecution there. Of particular concern is that the applicant obtained an Australian visa in October 2007, and visited Bangladesh for almost 2 months en route from Korea to Australia. The applicant gave several reasons for his return trips – to comply with South Korean immigration laws (his first visit), to visit his new-born children, and to provide support to his wife and on one occasion a sick relative. He also indicated that he tried to reduce the risks associated with his return, by disguising himself, staying in various locations and relying on the vigilance of his family and friends. The Tribunal accepts that the applicant had strong personal reasons for visiting Bangladesh. However, he visited the country for periods of months at a time, and it is difficult to reconcile this with a genuine fear of persecution. The Tribunal rejects the applicant’s claims to have remained in hiding during the visits, given that the express purpose was to visit family. Nor does the Tribunal accept that the applicant took any other steps to reduce the risk of persecution, such as using a passport in his religious name so that his enemies might not have been aware of his presence in Bangladesh. In sum, the Tribunal finds the applicant’s return visits to Bangladesh to be inconsistent with the conduct of a person who fears persecution there.
These passages demonstrate the relevance of the appellant’s time in Korea, namely, that despite having the capacity to claim refugee status there he did not do so. This also explains that the stop in Bangladesh on his way to Australia, just like his other visits to Bangladesh, were significant in persuading the Tribunal that he had no fear of persecution in Bangladesh. It is simply wrong in fact to assert that the Tribunal failed to consider that the appellant disguised himself on his trips to Bangladesh. The appellant’s evidence that he did disguise himself is referred to, but in an assessment of the evidence as a whole on the issue the Tribunal did not accept that the return visits to Bangladesh were consistent with a fear of persecution.
The Tribunal considered whether the personal and family circumstances of the appellant supported his claim that a Buddhist family would or had suffered hardship due to sustained discrimination. In the third of the primary reasons given to reject the appellant’s claim the Tribunal said:
Third, the applicant claimed that he and his family suffered hardship due to sustained discrimination, in areas such as education, employment and legal protection. He gave several examples, such as (in his post-hearing submission) difficulties in obtaining loans. However, the applicant’s personal circumstances – his tertiary education, financial resources and land ownership – contradict this claim. On the contrary, they suggest that he is a person with reasonable resources and relative privilege.
The applicant stated at hearing, credibly, that he and his mother had a difficult time after the death of his father in 1975 (he as an ‘orphan child’, ie. a fatherless child). The Tribunal accepts that this was the case, although it was ameliorated when the applicant’s male relatives stepped in to help the family. In any event, the Tribunal does not accept that the applicant and his mother suffered discrimination or disadvantage amounting to Convention-related persecution.
The applicant claimed that the discrimination persisted, and it was only through hard work and good luck that he managed to find work. Even then, he claimed that his application for recruitment to the police was rejected on religious grounds in 1991, and the Buddhist-owned company he worked for was forced to close in 2001, and that his choice of work as a monk was because few options were available. He also commented, in response to the Tribunal’s observations regarding the information that he had provided on his visitor visa application form, that he had exaggerated his financial standing and temporarily transferred money to his bank account in order to obtain the visa. The Tribunal accepts that the applicant overstated his financial resources for this purpose. However, having regard to his education, employment, finances and land ownership, as a whole, the Tribunal finds that the applicant’s material circumstances do not support his claim to have experienced discrimination amounting to persecution, or that he has a real chance of doing so in the future.
On this subject the appellant says firstly that wealth had nothing to do with discrimination and second that, in any event, he was not wealthy. Rather, the impression of wealth was given as a result of the fraud of the broker whom the appellant used to procure the visa to enter Australia. It was perfectly legitimate for the Tribunal to take into account the personal and family circumstances of the appellant in order to examine whether he had suffered the discrimination which he claimed. There was no jurisdictional error by the Tribunal in doing so. Insofar as the appellant seeks to contradict the facts which were before the Tribunal by reference to the fraud of his broker it must be remembered, as he admitted, that he verified the information about his family circumstances when before the Tribunal. It is impossible to suggest that the Tribunal came to a wrong conclusion on the facts when the appellant’s own evidence supported the findings which were made.
The appellant then stated that the Tribunal took a wrong approach to the situation of Buddhists in Bangladesh by finding that only the tribal Buddhist minority was targeted for persecution. This again however misapprehends the Tribunal’s approach. The Tribunal said:
90.… The Tribunal has taken into account country information indicating some discrimination against religious minorities in Bangladesh, including Buddhists. However, it does not accept that the mere fact of being a non-tribal Buddhist in Bangladesh gives rise to a real chance of persecution within the meaning of the Act.
That conclusion reflects the country information which the Tribunal describes at [64] as follows:
64.The Tribunal has found various reference to the Barua (or Burua) Bangladeshis (Barua being a variant of the word ‘Buddhist’), many of whom bear the surname. However, information on the current situation of Buddhists in Bangladesh focuses almost exclusively on events in the Chittagong Hill Tracts, ie. on the situation of the Buddhist tribal communities (the Jumma people). Significantly, the Tribunal has found no corresponding reports suggesting such mistreatment of Barua Bangladeshis, including on Bangladeshi Buddhists sites, such as Dhammaduta: The Theravada Bhikkhu in Bangladesh.
The appellant then, in a wide-sweeping generalised criticism, said that the Tribunal relied only on country information and ignored all the evidence supplied by the appellant. This general criticism cannot be sustained in view of the comprehensive consideration and assessment of all the evidence undertaken by the Tribunal.
The appellant then made complaint about the failure of the Tribunal to provide a female Indian interpreter. He repeated this criticism orally at the hearing of the appeal. It seems that his actual complaint is that the Tribunal failed to provide a non-Muslim interpreter. He explained orally that as he has a fear of harm from Muslims he would feel scared and inhibited at the hearing if a Muslim interpreter had been provided. He accepted however that his request was for a female Indian interpreter. He made no mention of his issue with a Muslim interpreter. Even if the failure to provide a requested interpreter could amount to jurisdictional error it cannot be so in circumstances in which the appellant did not make plain that he desired a non‑Muslim interpreter.
Then the appellant complained that he was not given sufficient time by the Tribunal to properly prepare his case. He received an adjournment of two weeks but apparently required four weeks. Again, this complaint was re-agitated orally at the hearing of the appeal. The circumstances as described by the appellant do not suggest any error by the Tribunal in limiting the adjournment and certainly do not suggest any jurisdictional error.
Consequently, none of the issues raised by the appellant in the written submission could succeed in establishing jurisdictional error by the Tribunal and thus the appellant should not be permitted to rely upon these grounds on the appeal.
The appellant was not legally represented on the appeal although he had been before the Federal Magistrate. He was assisted on the appeal by a female Indian interpreter. He raised orally the issues concerning the adjournment and the interpreter to which I have already referred. He repeated the generality of his claim that he feared persecution if returned to Bangladesh and that he brought the application in order to save his life. He made oblique reference to the corroborative evidence of Ms Chook. Although not elaborated orally, I take that reference to be a reference to the first ground of appeal before the Federal Magistrate which has been dealt with earlier in these reasons.
It follows that the appeal must be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 15 June 2009
Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Mr P Reynolds Solicitor for the First Respondent: Clayton Utz
Date of Hearing: 22 May 2009 Date of Judgment: 22 May 2009
0
0
0