SZNKU v Minister for Immigration

[2016] FCCA 214

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZNKU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 214

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection (class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:

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

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35

Applicant: SZNKU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1740 of 2015

Judgment of: Judge Street

Hearing date: 8 February 2016

Date of Last Submission: 8 February 2016

Delivered at: Sydney

Delivered on: 8 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms F Taah
Australian Government Solicitors

ORDERS

1. The 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 1740 of 2015

SZNKU

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 made by the Tribunal on 28 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Bangladesh who arrived in Australia on a subclass TU 676 visitor visa on 17 July 2008. The applicant lodged an application for protection on 28 August 2008. That application was refused by a delegate on 4 November 2008.

2. The applicant then sought a review before a Tribunal which was refused on 11 March 2009.  On 8 April 2009, the applicant sought judicial review on the Federal Court of Australia and the decision of the Tribunal was upheld on 28 August 2009.  On 17 September 2009, the applicant appealed to the Full Federal Court of Australia to review the decision and the Full Federal Court upheld the decision of the Federal Court of Australia on 17 November 2009.

3. The applicant sought special leave to appeal to the High Court of Australia on 15 December 2009 which was dismissed on 26 May 2010.  Consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35, the applicant lodged a second application for protection on the grounds of complementary protection within s.36(2)(aa) of the Migration Act 1958.

4. The applicant claimed to fear persecution on the grounds of his religious and political opinion in Bangladesh.  The applicant claimed to be a Christian Catholic and had been a member of the Bangladesh National Party.  The applicant claimed to fear harm from supporters of the Awami League, the Jami Islamu and the Jamiat-ul-Mujahideen, both identified in para.10 of the respondent’s submissions.  The applicant claimed he was the ward president of the BNP in a particular region from January 2001 to January 2005 as a result of which political activities, the Awami League is said to have advanced cases against him and to have tortured him.

5. The applicant also alleges that attempts were made to kill him as a result of his religious activities, including several alleged beatings from 20 December 2003 whilst he was on a bus to a village for religious publicity.  The applicant claimed to fear harm from Islamic fundamentalists because he would be regarded as a westerner due to his long stay in Australia and alleged he would continue as a political activist if he returns to Bangladesh. 

6. In support of the applicant’s claims, he submitted numerous documents including lengthy country information relating to alleged human right conditions and political and religious violence in Bangladesh, as well as letters said to support authored killing of BNP in Bangladesh and Australia.  There are supporting document relied on by the applicant said to have been authored by Catholic organisations and leaders of Bangladesh and leaders of Bangladesh in Australia and publications from Bangladesh Christian Association Australia naming the applicant as its organising secretary. 

7. The applicant claimed that his Christian activities extended to converting Hindus to Christianity, as a result of which he would be targeted by Muslims.  The applicant’s representatives submitted that the applicant was prevented from mentioning that he was involved in preaching Christianity as a result of deficiencies in the interpretation service used to prepare the applicant’s first written statement.  The representative also submitted that the applicant would be targeted for converting others to Christianity and after the hearing before the Tribunal submitted further written material, including submissions citing reports of attacks against Christians involved in converting others in Bangladesh and a supporting letter from a person stating that the applicant had attended a Bible study at a Presbyterian church in Sydney and that the applicant had helped him understand the Bible and had converted him from Islam to Christianity. 

8. In a letter date 9 December 2014, the applicant was invited to attend the hearing before the Tribunal on 27 February 2015.  The applicant appeared on that date to give evidence and present arguments and was assisted by an interpreter as well as being assisted by his advisor at the hearing.  After the hearing, the applicant was sent audio CDs of the hearing conducted before the Tribunal, following which on 6 March 2015 further material was provided by the applicant’s legal representative as identified by the Tribunal.  There was also provided to the Tribunal by letter of the same date by the applicant’s legal representative medical information, as well as information in relation to the applicant’s alleged Christian activities. 

9. The Tribunal accepted that the applicant is a Christian of the Roman Catholic faith, but did not accept the applicant’s claims that he had suffered any harm on account of his Christian religion in Bangladesh.  Further, the Tribunal did not accept that the applicant had played any role in converting any other person, whether Hindu or Muslim, to Christianity.  The Tribunal did not accept that the applicant had been involved in the BNP party and gave detailed reasons for the adverse findings in relation to the applicant’s credit that were open on material before the Tribunal.

10. The matter was fixed for a hearing by a registrar of the Court as a result of orders made on 6 August 2015.  Those orders provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.  The matter came before the Court on 2 November 2015 and was fixed for hearing today at 10.15 am. 

11. At the commencement of the hearing, a solicitor for the applicant sought leave to appear for the purpose of making an adjournment application.  That adjournment application was said to be on the basis of a desire to obtain the transcript of the hearing before the Tribunal, as well as on the basis that there were submissions in relation to counsel that were in a state that might shortly be able to be made available to the Court.  The first notice of the adjournment was given to the first respondent after 5 pm on Friday.  The first respondent opposed the adjournment. 

12. The Court stood the matter down to 2.15 pm to permit the applicant’s proposed counsel to appear and to provide any document or argument that the representatives might wish to advance.  At 2.15 pm, the Court was informed that counsel did not have any documents in any state which could be provided to the Court.  The Court was also informed that counsel had not in fact agreed to act for the applicant, but that the solicitor was willing, if an adjournment was granted, to do so.  The adjournment remained opposed by the first respondent and the grounds pressed for the adjournment as explained by the solicitor, was by reference to a desire to obtain the transcript. 

13. Given that the applicant had been given the CDs in relation to the hearing before the Tribunal prior to the putting on of submissions by the applicant’s legal representative to the Tribunal, the Court can see no utility in granting an adjournment in relation to the obtaining of the transcript.  Nothing was said to identify why the obtaining of the transcript will assist identifying any jurisdictional error.  Mention was made of the applicant’s injuries and his mental condition, both of which were matters raised before the Tribunal and taken into account by the Tribunal. 

14. At the hearing at 2.15 pm, a medication summary as of 4 February 2016 was handed up, as well as a medical report dated 31 October 2015, that predated the callover when the matter was fixed for hearing.  Nothing said by the solicitor on behalf of the applicant identified any basis upon which there could be said to be any utility in granting an adjournment.  For the reasons given on this decision, I am satisfied that the adjournment would have been of no utility and would have only unnecessarily increased the costs of the parties and utilised limited Court time.  On refusal of the adjournment application the solicitor for the applicant applied for and was granted leave to withdraw from the further conduct of the proceedings. 

15. The grounds of the application are as follows:

    1. The Tribunal failed to consider my claim on the basis of my political opinion against the Awami league party as an independent claim.

    2. The Tribunal failed to assess my harm on the basis of my support to the BNP

    3. The Tribunal failed to assess the escalating political violence in Bangladesh since I left the country.

    4. The Tribunal failed to assess my harm on the basis of my religious beliefs,

16. I accept the first respondent’s submission that none of the grounds are factually correct and, moreover, that the substance of the grounds are an impermissible merits review in respect of the Tribunal’s decision in respect of the complementary protection claims and these adverse findings were open to the Tribunal. 

17. In relation to ground 1, it is clear that the Tribunal made adverse findings in relation to the applicant’s alleged involvement in the BNP political party and in respect of his alleged fears concerning the Awami League.  The Tribunal made adverse findings in relation to the applicant’s alleged support of the BNP.  Both grounds 1 and 2 fail to make out any arguable jurisdictional error. 

18. In relation to ground 3, it is clear that the Tribunal took into account the country material provided by the applicant, including in the post hearing submissions dated 6 March 2015 by reference to the applicant’s alleged fears concerning his Christianity and his involvement with the BNP.  Ground 3 fails to make out an arguable jurisdictional error.

19. In relation to ground 4, it is clear that the Tribunal addressed the applicant’s religious beliefs and it was prepared to accept that the applicant was a Christian of the Roman Catholic faith.  Beyond the applicant imploring the Court to review the decision of the Tribunal, nothing was said by the applicant that identified any arguable jurisdictional error. 

20. For these reasons, the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 February 2016