SZQIS v Minister for Immigration - [2011] FMCA 966

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQIS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 966

MIGRATION – RRT decision – Buddhist monk from Bangladesh – no refugee claims made in evidence to Tribunal – no jurisdictional error in Tribunal’s findings – application dismissed.

Migration Act 1958 (Cth), ss.91R(1)(b), 91R(1)(c), 417, 424, 424(1), 424(2)

Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39
Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, [2004] HCA 32

Applicant:

SZQIS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1230 of 2011

Judgment of:

Smith FM

Hearing date:

24 November 2011

Delivered at:

Sydney

Delivered on:

24 November 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr O Jones

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,504.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1230 of 2011

SZQIS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant is a Buddhist monk, who was born in Bangladesh, received some Buddhist training there, and after the age of 13 completed his education and religious training in Sri Lanka.

He arrived in Australia at the age of 24 in 2008, on a religious worker temporary visa, granted on the sponsorship of a Buddhist meditation centre. After his visa expired, and while he was awaiting the outcome of a further visa application, he returned to Bangladesh on a visit, and on his return applied for a protection visa on 27 April 2010. He was assisted by a migration agent.
Attached to the visa application was a claimed history explaining fears of persecution because of his religious beliefs if he returned to his country of nationality, Bangladesh. In short, he claimed that his father had been a leader of a Buddhist community, and that his family had incurred persecution from fundamentalist Islamic groups, leading to his mother being kidnapped and forced to marry a Muslim and his father abandoning the family. He claimed that he had been then placed in a Buddhist orphanage and sent to Sri Lanka to avoid further persecution. He claimed that he had made three visits to Bangladesh to attempt to make contact with his mother, but was unable to do so, and had received threats and assaults in that process. He claimed that on his most recent visit to Bangladesh: “I again received threat from the fundamentalists to go back immediately”. He then returned to Australia, and applied for protection. He presented documents confirming his religious background, but no corroboration of his claimed history of religious persecution.
At an interview with the delegate on 22 October 2010, the applicant elaborated the history of persecution which he had presented in his visa statement.
The delegate made a decision on 12 January 2011 to refuse the visa. The delegate was not persuaded as to the truth of the claimed history of threats from Muslim fundamentalists, nor that his mother had been abducted in the circumstances claimed. The delegate thought, based on independent evidence, that the applicant would not face persecution in Bangladesh for reasons of being a Buddhist or a Buddhist monk. The delegate also expressed doubt whether the applicant genuinely feared persecution in Bangladesh, referring to his delay in seeking protection in Australia.
The applicant appealed to the Refugee Review Tribunal without appointing an agent. At or shortly before the hearing held by the Tribunal on 1 April 2011, he presented a statement in which he admitted that he had “not been completely honest about my case”, when presenting it to the delegate. He said the truth was that: “my mother was a bad mother and ran away with another man and started a new family. She was not kidnapped by Muslims as I said”. He said that his father had remarried and started another family, and that the applicant, as the youngest son, had been directed into a religious life at an age when he had no choice about this. The statement referred to the circumstances of his training and occupation as a Buddhist monk, and difficulties he had encountered at the meditation centre in Australia. His statement concluded:
Sir I am really sorry that I was not completely true full at the beginning I am being completely truthful now.
Because of family circumstances I was forced as a child to become a Monk. My father could not look after both my brother and me so I was cared for by a Buddhist Temple and as is the cultural practice often I was encouraged (though realistically I had no real choice) to take the robe. Once I had taken the robe my choices in life and study were very limited. From the day that I took the robe I was denied the right to play, or to choose another path in life. If I am returned to Bangladesh then I will have no choice but to continue my career as a Buddhist Monk because I have no other training, and in Bangladesh I will have no other prospects.
I have never lived in Bangladesh as an adult and I have no idea how to survive there at all.
I have had a very sad life up until now and I am hoping that you will understand that I am in need of protection because of the very sad fact that I have been denied in my life the rights that many children are allowed. The denial of my rights as a child means that I am denied the prospects of a life that I might otherwise have had if my rights as a child had not been denied me.
The applicant explained these concerns to the Tribunal at the hearing, according to the account of the hearing given in the Tribunal’s subsequent statement of reasons. The transcript is not in evidence and I accept the description given by the Tribunal. At the start, the Tribunal said:
50.Following the Tribunal’s introduction, the applicant summarised his concerns about returning to Bangladesh as follows: No‑one was going to harm him, but he was unsure about being able to live in Bangladesh, having lived outside the country since he was young. The Tribunal alerted him that, at face value, this did not appear to involve Convention‑related persecution, as the feared harm was not for the essential and significant reason of any of the 5 Convention grounds, and did not involve systematic and discriminatory conduct. The applicant noted this without comment. The Tribunal advised that it nonetheless wished to discuss the applicant’s circumstances, particularly given that he was unrepresented, to explore whether there may nonetheless be a Convention claim.
The applicant then gave more information about his family circumstances, indicating that he had maintained contact with his father, who was now reaching retirement age as a welder in Chittagong. He said he had had no contact with his mother after she abandoned him and his brother. He said there were many Buddhists in his home village, and referred to visiting the village on his last visit home. The Tribunal said:
58.The Tribunal asked the applicant about his 2 most recent trips to Bangladesh, and whether he experienced or saw anything that might cause him to fear harm in the future. The applicant said that, on his most recent trip, he took money that he had earned in Australia and arranged a ‘program’ for him and his family to return to their home village, for a Buddhist ceremony. He did not experience any problems, and did not sense any danger while he was there.
59.The applicant said that, if he were to return to Bangladesh, he would face difficulties because he has never lived there as an adult, having spent only 4 months of the last 18 years there. He would find it difficult to establish himself, and obtain work in an occupational or professional field. The Tribunal asked whether the applicant’s language skills and education (HSC) would not help him, or whether the applicant meant to say that he would face additional difficulties because of his religion, ethnicity or similar. The applicant replied that his father is now weak, and his older brother is unable to help financially because of his modest income (about 7,000‑8,000 taka per month) and own family commitments. The applicant was concerned that he would only be able to earn about 15,000‑20,000 taka per month, which would result in a very poor lifestyle.
60.The Tribunal put to the applicant that, while it appreciates that he may face some challenges on returning to Bangladesh, these did not appear to involve Convention‑related persecution.
After the applicant’s evidence was completed, a witness who had been helping the applicant gave evidence about her recent visits to Bangladesh, and her concerns about the potential difficulties that the applicant might face as a Buddhist if he returned to Sri Lanka. These concerns were then developed in written submissions presented to the Tribunal, which included submissions such as:
I am a Buddhist man and continue to observe the Buddhist faith and way of life. If I was returned to Bangladesh I would be known as a Buddhist because of my name. As I have outlined above, Buddhists continue to face harassment, persecution and violence in Bangladesh. Many Buddhist priests have been killed, including some being beheaded. Hundreds of Buddhist Temples have been destroyed. I would have no future in Bangladesh and would have the constant fear of being physically attacked simply because I am a Buddhist.
A second post‑hearing submission also sought to present the applicant’s personal situation as raising “unique and exceptional circumstances in my case that would enable me to be granted protection by Australia on humanitarian grounds”. It presented a report from a consultant psychiatrist, indicating that on interview the applicant had “reported a range of anxiety symptoms that are consistent with his developmental experiences and his current predicament of uncertainty about his visa”. The report does not give a diagnosis of mental illness, but said: “there is certainly psychological distress related to his developmental experiences and subsequent events”. The submission also referred to general country circumstances supporting a possible fear of persecution as a Buddhist person.
The Tribunal made a decision on 9 May 2011, which affirmed the delegate’s decision. The Tribunal carefully recited the manner in which the applicant had presented his claims both to the Department and to the Tribunal, including careful summaries of the written submissions of the applicant, including the post‑hearing submission, and including discussion of the report of the consultant psychiatrist.
The Tribunal referred to some general country information concerning the situation of different groups of Buddhists in Bangladesh, noting that it had found no report suggesting mistreatment of the group from which the applicant came, as distinct from Buddhist tribal communities whose circumstances did raise concerns of mistreatment.
In its “Findings and Reasons”, the Tribunal noted that the applicant had “disavowed the refugee claims that he presented in his protection visa application … and at the Department interview”. The Tribunal said that it found the applicant to be “candid in his evidence and accepts that he is a witness of truth”, despite his earlier presentation of false claims.
It accepted the background that he presented to the Tribunal in relation to his family, being placed in a Buddhist monastery from the age of 13, and being sent for further education in Sri Lanka.
It noted the applicant’s statements to the Tribunal as to his fears of harm on return. It said:
86.Feared harm on return to Bangladesh: The applicant claimed at the hearing to fear the consequences of his prolonged absence from Bangladesh, returning there with few relevant skills and no social network other than through his immediate family. He fears that he would have poor economic prospects, compared with staying in Australia.
The Tribunal said that his fears of a “much‑reduced standard of living” did not involve serious harm coming within s.91R(1)(b) of the Migration Act 1958 (Cth), and explained why the Tribunal did not accept that the applicant could only work as a Buddhist monk, noting that he had received a general education and that his father and brother had obtained work.
The Tribunal also concluded that “the feared harm also does not involve systematic and discriminatory conduct”, as required by s.91R(1)(c). The Tribunal said that it was “satisfied that the applicant’s earlier statements that he does not fear discrimination accurately reflect his state of mind; it prefers this to Ms Gould’s evidence and the applicant’s later submissions”. The Tribunal said that it “does not accept that the applicant is at risk of discriminatory conduct merely because he has lived abroad for a long period”.
It concluded:
89.The Tribunal, having found that the applicant’s own claims do not involve serious harm, or systematic and discriminatory conduct, is not required to consider whether these claims have a Convention nexus. However, the claims advanced on his behalf by Ms Gould – and later adopted by the applicant – do relate more obviously to the Convention grounds. The Tribunal considers these below.
The Tribunal then considered the applicant’s situation broadly, with reference to his religion, ethnicity and membership of social groups.

It referred to its earlier findings suggesting that Buddhists generally, and the applicant’s group in particular, “do not face discrimination (at least in employment) amounting to persecution”.
It referred to other parts of his submissions and to the evidence about his mental health and to his hardships in his childhood. It then summarised its conclusions:
Summary
99.The Tribunal has considered the applicant’s claims, individually and cumulatively. It accepts that he is apprehensive about returning to Bangladesh, having been absent for so long. Although he has been educated and employed as a Buddhist monk, the Tribunal finds that the applicant now wishes to find other work, and is concerned that his skills set does not equip him well in a competitive jobs market, although his HSC‑level education, English language skills and personal attributes may be of some advantage. Based on his oral evidence and taking into account country information about Buddhists, Baruas and Buddhist monks in Bangladesh, the Tribunal finds that there is no real chance of the applicant experiencing persecution for reason of his religion, race, his membership of a particular social group, or any combination of these or other Convention grounds.
100.The Tribunal is therefore not satisfied that the applicant has a well‑founded fear of Convention‑related persecution, now or in the reasonably foreseeable future, if he returns to Bangladesh.
In response to the applicant’s submissions requesting that the Tribunal make a recommendation to the Minister in relation to the exercise of the s.417 discretion, the Tribunal said that it had decided not to do that. It noted that “the applicant can still make a request directly to the Minister”.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter to the Tribunal for further consideration. I have power only to make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power to decide whether the applicant qualifies for a protection visa or should be given permission to reside in Australia.
It is also not within my jurisdiction to make any recommendations to the Minister in relation to the exercise of discretion under s.417. Nor, since this is not a statutory function of the Tribunal, is the Tribunal’s reasoning in relation to the making of such a recommendation by it a matter which can give rise to jurisdictional error affecting its decision on the applicant’s qualification for a protection visa.
The applicant’s application contains the following three grounds:
1.The decision was made in breach of natural justice.
2.The Tribunal failed to consider crucial evidence constructively before it.
3.The Tribunal made a jurisdictional error by failing to comply with 424 of the Migration Act 1958 (Cth).
These have not been explained by way of an amended application nor any written or oral submissions by the applicant.
He has filed a written submission which states:
1.The RRT Member did not seriously address my claim of persecution on the basis of my Buddhist religion. On page 23 of 24 at paragraph 99 it states “there is no real chance of the applicant experiencing persecution for reason of his religion, race, his membership of a particular social group, or any combination of these or other Convention grounds.”
2.The RRT’s approach regarding country information ignored that information to the effect that Buddhists across Bangladesh generally (not just in the Chittagong Hills area) are persecuted.
3.The RRT member did not take into account the latest country reports evidence which clearly demonstrate that members of religious minorities suffer discrimination and persecution from members of the Muslim majority. RRT Members should be obliged to consider the latest country reports – not just concentrate upon one Report. …
The submission then refers to a report by Amnesty International issued in May 2011. However, there is no suggestion that this report was evidence that was before the Tribunal, and it seems unlikely.

No ground of review can arise from a failure of the Tribunal to consider evidence which is not shown to have been given to it.
Unaided by submissions, I am unable to identify any arguable breach of natural justice, in so far as it is encompassed by the provisions of the Migration Act affecting Tribunal procedures.
Similarly, I am unable to identify any “evidence” which was before the Tribunal and which it failed to consider. In my opinion, its reasons show a careful examination of all the evidence that was before it.
I do not understand the reference to “evidence constructively before it” in Ground 2. If this is a suggestion related to the third ground, then I am unable to identify under that ground any error in relation to s.424.

I can detect no failure to comply with s.424(1) of the Migration Act, and it appears to me that s.424(2) did not arise, particularly in the light of the High Court’s interpretation of these two subsections (see Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 at [48]).
If these grounds implicitly suggest that the Tribunal should have made further enquiries or obtained additional evidence on its own motion, in the circumstances of the present case the Tribunal was under no such duties (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, [2004] HCA 32 at [43], Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 at [1], and Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [1], [20], and [86]).
In relation to the contentions in the recent written submission, I am unable to detect in these submissions anything more than disagreement, even “emphatic disagreement”, with the Tribunal’s assessment of the risks of harm amounting to persecution within the Convention as adopted by the Migration Act arising from the applicant’s Buddhist religion. I am not satisfied that there was any country information that was cited by the applicant or on his behalf which it “ignored”, nor that its reasoning in relation to this issue reflects any illogicality or unreasonableness which could provide jurisdictional error under principles discussed by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611.

Taking into account all of the evidence and submissions before me, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error.
I must therefore dismiss the application.

I certify that the preceding thirty‑three (33) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 7 December 2011