SZOWQ v Minister for Immigration
[2011] FMCA 248
•12 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOWQ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 248 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Bangladesh and Greece – applicant found to be a permanent resident of Greece – claims in relation to Bangladesh not considered – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 91R, 424A |
| Minister for Immigration v SGLB (2004) 207 ALR 12 SZMWQ v Minister for Immigration [2010] FCAFC 97 |
| Applicant: | SZOWQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2761 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 12 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2011 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Hooper DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2761 of 2010
| SZOWQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 1 December 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant was born in Bangladesh but has also lived in Greece. He made claims of religious persecution in relation to both countries. The following statement of background facts relating to the applicant’s claims and the decision of the Tribunal on them are derived from the Minister’s written submissions, filed on 4 April 2011.
The applicant is a male national of Bangladesh and permanent resident of Greece. [1] He arrived in Australia on 13 February 2010.[2]
[1] CB 25; CB 48; CB 129 [47]
[2] CB 48
The applicant applied for a Protection (Class XA) visa on 25 March 2010.[3] The applicant claimed to fear harm in both Greece and Bangladesh because of his conversion from Islam to Christianity.[4]
[3] CB 1
[4] CB 17-20
The application was refused by a delegate of the first respondent on 2 August 2010.[5] The applicant applied to the Tribunal for review of the delegate's decision on 26 August 2010.[6]
[5] CB 63
[6] CB 73
The applicant attended a hearing before the Tribunal on 15 October 2010,[7] at which he gave oral evidence and presented arguments on determinative issues. The Tribunal affirmed the decision under review refusing to grant the applicant a protection visa.
[7] CB 84
The Tribunal decision
The Tribunal accepted that the applicant was a national of Bangladesh[8] and a permanent resident of Greece without limitations or restriction.[9] The Tribunal accepted that the applicant converted to Christianity while he was residing in Greece.[10]
[8] CB 134 [84]
[9] CB 134 [88]
[10] CB 135 [91]
The Tribunal found that the applicant had a legally enforceable right to enter and reside in Greece within the meaning of s.36(3)[11] of the Migration Act 1958 (Cth) (“the Migration Act”) and that he had not taken all possible steps to avail himself of that right.[12] The Tribunal did not accept the applicant's claims concerning past Convention related harm in Greece. [13] It did not accept that the applicant had a well founded fear of persecution for a Convention reason in Greece, or that he would be returned to Bangladesh (see ss.36(4) and 36(5) of the Migration Act).[14]
a)The Tribunal did accept that the applicant was subject to extortion attempts and threats by certain individuals in Greece.[15] It did not accept that the applicant suffered any harm for the reason of his religion or any other Convention reason, or that the applicant was restricted in any way in practising or expressing his religious beliefs in Greece.[16]
b)The Tribunal was further satisfied of the availability of effective state protection in Greece.[17]
[11] CB 134 [88]
[12] CB 140 [111]
[13] CB 138 [104]
[14] CB 134 [88]
[15] CB 135 [91]
[16] CB 138-139 [104]
[17] CB 140 [110]
The present application
These proceedings began with a show cause application filed on 23 December 2010. The applicant now relies upon an amended application filed on 1 March 2011. There are three grounds in that amended application:
1. The Refugee Review Tribunal failed to consider my fear of persecution under s.91R of the Migration Act.
Particulars:
A. The Tribunal failed to consider my fear of persecution under s.91R of the Migration Act that:
i) The Tribunal failed to deal my religious activities in Australian as a Christian. The Tribunal failed to ask me any material question that how I would have been adversely affected by the religious activities in Australia if I return to country in Bangladesh and Greece.
2. The Refugee Review Tribunal failed to understand the General Diary lodged to the police in Greece and other documents that I lodged to the Tribunal.
Particulars:
A. The Tribunal failed to understand the General Diary lodged to the police in Greece and other documents that I lodged to the Tribunal that:
i) The Tribunal’s doubts as to the veracity of the applicant’s claims are exacerbated by he contents of the complaint which he claimed to have lodged at a police station in Athens on 7 November 2008 against his assailants.
3. The Refugee Review Tribunal made wrong conclusion about the persecution in Greece and my relocation in Greece.
Particulars:
A. The Tribunal made wrong conclusion about the persecution in Greece and my relocation in Greece that:
i) The finds that any harm the applicant may suffer in Greece is not for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
ii) The Tribunal is unable to reconcile the various inconsistencies in the applicant’s evidence regarding his travels to and stays in Santorini and is of the view that the shifts in his evidence were designed to mask his true circumstances in Greece.
I have before me as evidence the court book, filed on 1 February 2011.
I received as a submission an affidavit filed by the applicant with his original show cause application on 23 December 2010. The applicant filed further submissions on 25 March 2011.
Consideration
The first ground in the amended application concerns s.91R(3) of the Migration Act. The particulars to ground 1 assert that the Tribunal:
a)Did not deal with the applicant's religious activities in Australia.
b)Did not ask the applicant material questions about how his activity in Australia would impact adversely upon him should he return to Bangladesh or Greece.
The applicant's written submissions in support of this ground primarily seek impermissible merits review.
Section 91R(3) has been the subject of much litigation and also academic criticism. The section relevantly requires a decision-maker to disregard conduct engaged in in Australia if that conduct was engaged in for the sole purpose of enhancing a claim for protection.
Before making a decision for the purposes of s.91R(3), it is necessary for a decision-maker to determine relevant facts. A relevant fact in this case is that the applicant claimed to have converted to Christianity in Greece and to have continued his religious practice in Australia. It may be seen that the assertion of religious practice in Australia was intended to corroborate the assertion of conversion in Greece.
The Tribunal accepted the truth of the applicant’s conversion in Greece. The Tribunal did not in its reasons discuss in any critical way the applicant’s religious practice in Australia. The Tribunal appreciated that the applicant claimed to have attended a Baptist church in Sydney[18] and the existence of documentary evidence concerning this claim.[19] It should be inferred, given the Tribunal accepted the applicant converted to Christianity in Greece, that the Tribunal accepted the applicant's claimed conduct in Australia had occurred, and was satisfied that his reason for engaging in this conduct was not solely to strengthen his refugee claims (cf s.91R(3)). To infer otherwise would be perverse.[20] In my view, the only rational way to interpret the Tribunal’s reasons is that the Tribunal, having accepted that the applicant had converted to Christianity in Greece, accepted that the applicant was a genuine Christian adherent in Australia. Having reached that implicit conclusion, it was unnecessary for the Tribunal to pay any further regard to s.91R(3).
[18] CB 130 [57]
[19] CB 126 [27]
[20] See similarly SZMDC vMinister for Immigration [2008] FMCA 1282 at [29]-[30]
The applicant made no claim that his conduct in Australia gave rise to a sur place claim in relation to Greece, and no such claim squarely arose on the material such that the Tribunal was required to consider it.[21] The applicant did not suggest that his conduct in Australia was known in Greece, or would become known in Greece, or otherwise claim that it put him at risk of future harm in Greece. The applicant's conduct in Australia, and the documents relating to that conduct, was intended to corroborate his claimed religious conversion.[22] The Tribunal accepted the applicant had converted to Christianity.
[21] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [68]; NAVK v Minister for Immigration [2004] FCA 1695 at [15]
[22] See CB 83.5
As to the applicant's complaint that the Tribunal did not ask him questions about how he would be adversely affected by his religious activities in Australia, the applicant has not produced any transcript evidence of the Tribunal hearing.[23] The applicant bears the onus of demonstrating jurisdictional error.[24]
[23] See NAOA v Minister for Immigration [2004] FCAFC 241 at [21]
[24] Minister for Immigration v SZGUR (2011) 273 ALR 223 at [67] per Gummow J
The Tribunal’s decision indicates that the applicant was asked whether he practised Christianity in Australia.[25] The Tribunal was not obliged to suggest a potential claim to the applicant, nor to inquire further, nor to prompt and stimulate an elaboration of the applicant’s claims.[26] It was for the applicant to present such evidence and to advance such submissions as he considered relevant to his application. It was no part of the Tribunal’s task to make out the applicant's case for him.
[25] CB 130 [57]
[26] Minister for Immigration v SGLB (2004) 207 ALR 12 at [1], [42] and [43]; Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at [54]; [85]-[86]
The second ground asserts that the Tribunal failed to understand a document lodged with the police in Greece and other documents the applicant provided to the Tribunal. The particulars to this ground do not provide helpful explanation and repeat an aspect of the Tribunal’s findings:[27]
a)The Tribunal found, at [94], that its doubts as to the veracity of the applicant's claims concerning past harm in Greece, which arose out of inconsistencies in the applicant's evidence, were exacerbated by the contents of the complaint which the applicant claimed to have lodged at a police station in Athens.
[27] CB 135-136 [94]
There is no substance to the applicant’s assertion. It is apparent that, while the Tribunal was prepared to accept the veracity and accuracy of the police document, it was concerned about inconsistencies between the document and the applicant’s oral evidence to the Tribunal. Those inconsistencies were the subject of an invitation to comment purportedly issued pursuant to s.424A of the Migration Act.
The Tribunal’s concern was plainly that the contents of the report to the police omitted important details contained in the applicant's oral evidence:
a)in particular, the applicant gave oral evidence to the Tribunal that he was assaulted because of his conversion to Christianity and that one assailant was carrying a knife;[28] and
b)the applicant's report to the police made no suggestion that the threats were related to his religious conversion, and the report to the police did not suggest that the applicant was assaulted or that any of the assailants were carrying a knife.[29]
[28] CB 135 [92]
[29] CB 135-136 [94]-[95]
No error is disclosed in the Tribunal’s treatment of this evidence. Further, the Tribunal traversed its concerns with the applicant at the hearing.[30]
[30] Especially at CB 132 [72]-[74]
The applicant's written submissions (pages 2-3) raise the further complaints that the Tribunal asked the applicant unnecessary questions and failed to investigate the authenticity of the “General Diary” (the report to the police). No particulars are provided as to which questions it is said were “unnecessary”. The applicant has not produced a transcript of the Tribunal hearing, and there is nothing disclosed on the face of the Tribunal’s decision record to provide any support for such an allegation. Further and in any event, the questions asked by the Tribunal are generally a matter for it.[31]
[31] NADH v Minister for Immigration [2004] FCAFC 328 at [124]-[125]
The Tribunal did not find the police report to be fabricated so there was no occasion for it to inquire into its authenticity. Further, it is well established that the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence.[32] The duty imposed on the Tribunal by the Migration Act is a duty to review and not a duty to inquire.[33]
[32] Minister for Immigration v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] per Keane CJ and at [49] per Emmett J
[33] Minister for Immigration v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)
The third ground is the assertion that the Tribunal made a wrong conclusion about the applicant’s assertions of persecution in Greece and what he describes as “relocation” in Greece. The particulars to this ground appear to cavil with aspects of the Tribunal’s factual findings. Whether harm feared by the applicant was for a Convention reason was a question of fact for the Tribunal.[34] As is pointed out by the Minister, there was no issue of relocation of the applicant in Greece. The issue was one of the application of s.36(3) of the Migration Act, given that it was not disputed that the applicant enjoys a right to reside permanently in Greece, and, in the Tribunal’s view, Greece is a safe country in which the applicant can reside.
[34] Ramirez vMinister for Immigration (2000) 176 ALR 514 at [38], [43]; SZDJQ vMinister for Immigration [2006] FCA 533 at [38]
It is apparent that, while the applicant disagrees with the Tribunal’s reasoning, the Tribunal’s approach was open to it on the material before it. In my view, the Tribunal, following a careful and thorough analysis of circumstances in Greece, correctly applied s.36(3) when read with ss.36(4) and 36(5).
The applicant's submissions complain that the Tribunal did not have regard to “relevant considerations”, said to be the applicant's personal circumstances and the difficulty he would face on “relocation” to Greece.
Outside of the limitations on s.36(3) imposed by ss.36(4) and 36(5), the Tribunal was under no obligation to assess the consequences for the applicant or “reasonableness” of the applicant residing in Greece[35]. Potential hardships of living in the third country, not amounting to Convention persecution, are not relevant to an assessment under s.36(3).
[35] SZMWQ v Minister for Immigration [2010] FCAFC 97 at [26]-[47] per Rares J and [82]; [88]-[109] per Flick J (Besanko J agreeing with Flick J at [61])
I also find that there is no substance in the assertions of error in the applicant’s affidavit filed on 23 December 2010. Those assertions are not particularised and, in the absence of particulars, go nowhere.
On my own reading of the Tribunal decision, I am satisfied that it is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I so order.
The Minister seeks an order for costs in consequence of the dismissal of the application. The Minister seeks an order for costs fixed in the sum of $5,000. The applicant submitted that the costs sought were excessive. The costs sought are significantly less than those prescribed under the Court scale. I am satisfied that costs of not less than $5,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 15 April 2011