SZQES v Minister for Immigration

[2017] FCCA 1248

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQES v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1248

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – Tribunal complied with its obligations under s.425 – in respect of the additional ground, no claim was advanced by the applicant that the applicant feared harm on grounds of religion – the Tribunal was not in error in failing to address a claim that was not advanced – no jurisdictional error identified – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 425, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: SZQES

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1767 of 2016

Judgment of: Judge Street

Hearing date: 26 May 2017

Date of Last Submission: 23 June 2017

Delivered at: Sydney

Delivered on: 27 June 2017

REPRESENTATION

The Applicant appeared in person (Mr B Zipser of counsel provided two sets of written submissions for the applicant).

Solicitors for the Respondents: Ms C Hillary
DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.   

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1767 of 2016

SZQES

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 June 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australia on 8 June 2010 as the holder of a visitor visa. On 21 June 2010 the applicant applied for protection. The delegate refused to grant a protection visa and the decision was affirmed by an differently constituted Tribunal on 6 April 2011. The applicant made a further application for protection on 25 October 2012. This was accepted as valid on the grounds of complementary protection, consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. On 2 December 2014 the delegate refused to grant the applicant a protection visa.

The Tribunal’s decision

1. The applicant applied for review on 9 December 2014. The applicant was invited to attend a hearing on 18 May 2016, which the applicant attended to give evidence and present arguments. The applicant claimed to fear harm by reason of his political activities and by reason of an imputed opinion and/or the bringing of a false case by the Awami League against him. 

2. The Tribunal summarised the applicant’s background and set out the relevant law. The Tribunal identified the applicant’s claims and evidence and that the applicant was of Bengali ethnicity and his religion is Islam.  The Tribunal identified the applicant’s alleged political activities and an alleged incident on 24 July 2004, where he was attacked and beaten in the street by a group of Awami League cadres. The applicant was allegedly attacked on 1 February 2005 by Awami terrorists. The applicant left Bangladesh for Singapore in 2005 and returned to Bangladesh in 2009. The applicant alleged that he ‘managed the airport’ but that he found his life was not safe so he returned to Singapore after five weeks. 

3. The applicant provided a further statement dated 10 June 2014, in which he claimed that he was an active member of the BNP, as well as identifying alleged meetings in Australia, the effect of which the applicant alleged this political engagement is the most significant reason for his claim regarding protection and safety. 

4. The Tribunal also made reference to a submission received from the applicant’s current representative dated 22 July 2014, canvassing legal issues and outlining the history of Bangladesh and contending with the applicant fears persecution on the Convention grounds of religion and political opinion and also referred to the applicant engaging in complementary protection obligations.

Consideration of the applicant’s claims

1. The Tribunal summarised the applicant’s evidence given on 18 May 2016. The Tribunal identified that the applicant claims to fear that if he were returned to Bangladesh, he would be harmed or killed because of his membership and activist support for the BNP. The Tribunal found that there was reason to doubt the credibility of the applicant’s claims as to having been an activist in the BNP cause and to have he suffered harm from the authorities and the Awami League as a result.

2. The Tribunal identified the inconsistencies in the applicant’s evidence summarising six inconsistencies in that regard. The Tribunal also identified it had been difficult to believe that the applicant would have felt compelled to flee his country and go and live in Singapore by learning that a false charge had been brought against him. The Tribunal was not satisfied that the applicant’s decision to return to Bangladesh from Singapore for a visit in September 2009, using his passport in his own name was consistent with his claimed fear that he would be killed by the Awami League supporters or arrested by the police. 

3. The Tribunal found that it was not satisfied as to the applicant’s credibility of the applicant’s claim that he was a member of the BNP or its student wing, the Jatiyatabadi Chatradal, or that the applicant held any executive position in these organisations or that he was an activist supporter of the BNP while he was in Bangladesh.

4. The Tribunal was not satisfied that the applicant was involved in processions, campaigns or speech-making as he claims, or that in any other way he established for himself a political profile as a BNP leader or activist or as an opponent of the Awami League. The Tribunal was not satisfied that the applicant was ever targeted or harmed, for such a reason by members or supporters of the Awami League, the Bangladesh authorities or anyone else, including being subjected to a false case. The Tribunal was not satisfied that the reason the applicant went to live in Singapore in 2005 was a fear of being harmed in Bangladesh. 

5. The Tribunal identified letters which had been provided, allegedly supporting the applicant’s political involvement and the Tribunal decided to place no weight on them as evidentiary support of the applicant’s claims. The Tribunal was also not satisfied that any weight could be placed on the court documents submitted by the applicant which allegedly related to the false case against him.

6. The Tribunal referred to the applicant’s activity in Australia. The Tribunal was not satisfied this reflects any genuine interest or commitment to the party. The Tribunal was not satisfied that such contact would in itself put him at any risk of harm on return to Bangladesh or that it indicates he would involve himself in the political life of the country so as to be at risk of harm if he would return. The Tribunal was not satisfied that any significant weight can be placed on the alleged supporting letters that the applicant submitted on that issue. 

7. The Tribunal, having considered the applicant’s claims individually and cumulatively 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 the applicant would suffer significant harm within the meaning of s.36(2)(aa) of the Act because of a political involvement with the BNP or its associated Chatradal, either in Bangladesh or in Australia. The Tribunal was not satisfied there is a real risk the applicant would be ultimately deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhumane treatment or punishment or degrading treatment or punishment.

8. The Tribunal found that the applicant had not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in this case. The Tribunal found that the applicant did not satisfy the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Before this Court

1. On 8 September 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed submissions completed by Mr Zipser of counsel dated 25 May 2017, purportedly in support of the grounds in the originating application.

2. The grounds in the originating application are as follows:-

   1. The Second Respondent made jurisdictional error by ignoring a relevant consideration namely the psychological condition of the Applicant.

   2. The Second Respondent made jurisdictional error by failing to consider whether any stress suffered by the Applicant affected his ability to give evidence.

   3. The Second Respondent made jurisdictional error at [24] by failing to comply with the requirements of sections 424 and 424AA.

   Particulars:

   To be supplied upon receipt of the Transcript. 

3. At the commencement of the hearing, with the applicant present in person, the Court explained that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant error. The Court explained that the relevant error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if the Court was satisfied the Tribunal’s decision was unlawful and unfair it would set aside the decision and send it back for further hearing. The Court explained that if the Court was not satisfied the Tribunal’s decision was unlawful or unfair it would dismiss the application.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. From the bar table the applicant indicated he did not wish to say anything other than to rely upon the written submissions filed by Mr Zipser of counsel on the applicant’s behalf. Ms Hillary, the solicitor for the first respondent put submissions as to why the identified grounds in the application failed to make out any jurisdictional error. 

6. Ms Hillary submitted that the Tribunal expressly considered the psychological report submitted by the applicant in its reasons. The Tribunal noted that the report diagnosed the applicant as suffering from stress, but that the applicant did not claim that these difficulties had hindered him in presenting his protection claims. The Tribunal made express reference, having observed the applicant at the hearing, and formed the view that the applicant was able to understand the questions put to him and respond to them and articulate his claims and otherwise participate effectively in the proceedings.

Consideration

Ground 1

1. On the face of the material before the Court, the applicant had a real and meaningful hearing. In relation to ground 1, I accept the first respondent’s submission that the documentary evidence was insufficient to show the applicant was unfit to give evidence and present arguments at the hearing. There is no claim advanced that the applicant claimed to fear harm because of his psychological condition. On the basis of the material before the court the Tribunal complied with its obligations under s.425 of the Act and complied with the obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, for the reasons given it is incorrect to suggest that the Tribunal failed to take into account the applicant’s psychological condition. It was open to the Tribunal to make such a finding in respect of the applicant’s ability to participate in the hearing. For the reasons earlier given, I am satisfied the applicant had a real and meaningful hearing. No jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, no particulars were provided identifying any information enlivening obligation under s.424A of the Act. The written submissions filed on behalf of the applicant do not identify any information enlivening any such obligation. No jurisdictional error is made out by ground 3.

2. The written submissions filed on behalf of the applicant seek to take issue with the adverse credibility findings. On the face of the Tribunal’s reasons, the adverse credibility findings were the subject of reasonable, rational and logical grounds and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out in that regard.

3. Further, in relation to the letters provided in support of the applicant’s claims, it was a matter for the Tribunal to determine what weight to give those letters. No jurisdictional error is made out by the submissions.

Whether a claim to fear harm in respect of religion that should have been the subject of findings

1. In the course of the hearing, the Court raised with Ms Hillary, the solicitor for the first respondent, that the reference to the letter in the Tribunal’s reasons in paragraph 16 suggested that the applicant had a claim to fear harm under a ground of religion. The Court identified that on one view, this could be nothing more than a quote from the actual letter and on the face of the applicant’s statement, it is not apparent that the applicant raised any such claim. However, the Court was concerned that the applicant should have the opportunity to provide any amended application and put forward any further submissions in that regard, but otherwise proposed to reserve its decision. 

2. Pursuant to orders made on 29 May 2017, Mr Zipser of counsel provided submissions on 9 June 2017 alleging the following additional ground of jurisdictional error:-

   The applicant claimed to the Department and to the Administrative Appeals Tribunal (“the AAT”) that he feared persecution on grounds of religion. The AAT expressly disregarded this claim, and failed to make findings resolving the claim. This was a jurisdictional error by the AAT.

Consideration of the additional ground

1. Mr Zipser of counsel argued it was open to the Court to find that the applicant advanced a fear of persecution on the grounds of religion and by the failure of the Tribunal to deal with that claim fell into jurisdictional error. Mr Zipser of counsel properly pointed out the difficulties that the Tribunal had with the submissions advanced on behalf of the applicant that appeared to address matters and a country extraneous to the applicant’s claim and that this was expressly addressed in footnote 1 to the Tribunal’s reasons.

2. Mr Zipser of counsel drew attention to the notation in the Tribunal’s reasons that there was nothing in the applicant’s evidence to suggest that he fears harm in Bangladesh on the grounds of religion and that accordingly, the Tribunal had disregarded that aspect of the written submission in respect of the applicant’s claims. The first respondent filed written submissions in answer on 23 June 2017.

3. I accept the first respondent’s submission that the Tribunal correctly identified the applicant’s claims in its reasons and that the applicant confirmed that he did not fear harm in Bangladesh for any other reason. Accordingly, it was open to the Tribunal to disregard the parts of the applicant’s submissions that he feared harm on the ground of religion for the reasons given by the Tribunal. I accept the first respondent’s submission that no claim that the applicant feared harm on the grounds of religion was advanced by the applicant and that no such claim arose on the material before the Tribunal. Accordingly, the Tribunal was not in error in failing to address a claim that was not advanced. No jurisdictional error as alleged in the additional ground is made out.

4. Accordingly, the originating application must be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  27 June 2017