SZQPY v Minister for Immigration

[2017] FCCA 2157

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQPY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2157

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – the adverse credibility findings by the Tribunal were open – it was open to the Tribunal to find that the applicant was not a witness of truth – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Applicant: SZQPY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 152 of 2016

Judgment of: Judge Street

Hearing date: 6 September 2017

Date of Last Submission: 6 September 2017

Delivered at: Sydney

Delivered on: 6 September 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms L Coleman

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 152 of 2016

SZQPY

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 Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 January 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 is a Buddhist from Chittagong who fears harm from certain Muslims, due to a conflict between them and his family. The applicant fears harm more generally on the ground of his religion.

3. The applicant attained college entry and travelled to Sir Lanka for further religious studies, where he made visits to India, Nepal, Thailand, Malaysia, Laos and Cambodia between 2000 and 2007. The applicant returned to Bangladesh in May 2007, before re-entering Sri Lanka in December 2007. 

4. The applicant applied for and was granted a valid temporary business visa P880 and arrived in Australia on 25 October 2010. On 24 November 2010, the applicant lodged an application for a protection visa. That application was refused by the delegate on 29 March 2011.

5. The applicant applied for review to a differently constituted Tribunal on 19 April 2011 and on 12 August 2011, a differently constituted Tribunal (“the first Tribunal’s decision”) affirmed the delegate’s decision. An application for judicial review to the then Federal Magistrates Court was dismissed, but on appeal, the Federal Court of Australia ordered the matter be remitted to a differently constituted Tribunal (“the second Tribunal’s decision”) for reconsideration.

6. On 31 October 2014, a differently constituted Tribunal (“the current Tribunal’s decision”), again affirmed the decision of the delegate, refusing to grant the applicant a protection visa. On 5 June 2015, orders were made by consent remitting the matter for reconsideration The Current Tribunal’s decision

7. The applicant was invited to attend a hearing before the current Tribunal on 27 November 2015. The applicant appeared on that date, represented by his migration agent, to give evidence and present arguments.

8. The Tribunal identified the background to the applicant’s application for protection and set out the relevant law. The Tribunal identified that it held credibility concerns about the applicant’s claims and evidence.  The Tribunal identified detailed reasons in support of its credibility concerns and the Tribunal put to the applicant that it had difficulty accepting that he would risk returning to Bangladesh in 2007 and attempt to resume the case against    X to try and recover the family land.

9. The Tribunal also made reference to the omission of important matters from the applicant’s first written statement and evidence to the delegate. The Tribunal did not accept the applicant’s explanation as satisfactory as to their omission from what was otherwise a detailed written statement. The Tribunal did not accept the applicant’s explanations for his failure to advance significant claims that were not raised before the delegate.

10. The Tribunal also listened to the audio recording of the interview and found that contrary to what the applicant alleged, he did not tell the delegate that the people he fears, went to his maternal uncle’s home where his mother was staying, but did not approach her.

11. The Tribunal identified the inconsistency in the applicant’s evidence about the role of his maternal uncle in approaching the authorities in 2000. The Tribunal found the applicant’s evidence to be inconsistent and his belated claim that his uncle assisted his mother to find a lawyer, only after his evidence to the first Tribunal was put to him, was an attempt to conceal this inconsistency.

12. The Tribunal also found the applicant gave inconsistent evidence about the outcome of a court case in 2000. The Tribunal noted that it had put the applicant on notice that although the delegate in the first and second Tribunals found his evidence credible, it was the task of this Tribunal to decide for itself whether or not he was telling the truth and that that was the purpose of the questions he was being asked. The Tribunal considered cumulatively that the concerns it held in relation to the applicant’s credibility led the Tribunal to conclude that the applicant was not a witness of truth.

13. The Tribunal also referred to the various documents that the applicant submitted and noted that the Tribunal had raised with the applicant, that according the available country information, false or fraudulent documents were widely available in Bangladesh. The Tribunal found that the documents had been procured to support a false account put forward by the applicant and the Tribunal did not give the documents evidentiary weight.

14. The Tribunal made reference to the submissions that were advanced in relation to the applicant’s credibility and found that they do not overcome the concerns the Tribunal holds about the applicant’s claims to have been willing to return to Bangladesh and pursue a case against a powerful individual who had previously harmed him for doing so with impunity. The Tribunal noted the representative submitted that the applicant needed access to land to support himself, nevertheless the applicant lived for a number of years in both Bangladesh and Sri Lanka without access to that land.

15. The Tribunal found the applicant’s mother was able to live in Bangladesh without access to that land. The Tribunal was not persuaded that the applicant’s desire to gain access to the land would cause him to take the risk of again resuming his case against X.

16. The Tribunal found that there were areas of inconsistency relating to important matters about which the applicant could reasonably be expected to be consistent. The Tribunal was not satisfied that the inconsistency had been caused by the factors advanced by the representative.

17. Having considered the Tribunal’s concerns and the material cumulatively, the Tribunal found the applicant is not a witness of truth and the Tribunal found that the account of events on which the protection claim are based are false. The Tribunal made reference to the possibility of the applicant, a Buddhist, suffering discrimination from the Muslim majority population, but found the risk of that occurring or amounting to serious harm was remote. The Tribunal found the risk of the applicant suffering harm as being a member of a social group of a minority of Buddhists on the ground of his religion to be remote.

18. The Tribunal found that there is not a real chance the applicant will suffer serious harm in Bangladesh. The Tribunal found the applicant does not have a well-founded fear or persecution on a convention ground. 

Consideration of complementary protection criteria

1. The Tribunal found there are not 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 he will suffer significant harm.

2. Accordingly, the Tribunal found the applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

1. The applicant filed an amended application on 7 August 2017 which identifies the following grounds:-

   The decision of the second respondent (the Tribunal) was affected by jurisdictional error in that:

   1. The Tribunal constructively failed to exercise its jurisdiction because it failed to make inquiries of either the Jobra Gunalankar Buddhist Orphanage or the Sri Maha Bodhi Viharaya about whether letters attributed to them at Court Book 36 and 86 respectively were genuine: SZLGP v MIAC [2009] FCA 1470; (2009) 181 FCR 113 at [49], [51], citing MIAC v SZIAI (2009) 83 ALJR 1123 at [25].

   2. The Tribunal reached its finding that the applicant was not a witness of truth upon an insufficiently logical or probative basis, but only upon only minor omissions and purported inconsistencies in the applicant's evidence: CGQJ5 v MIBP [2016 FCAFC 146 at [36]- [44].

   Particulars

   a. The following bases of the Tribunal 's finding that the applicant was not a witness of truth were not sufficiently logical or probative of that conclusion:

   • The purported inconsistency between the applicant's claim of his willingness to return to Bangladesh in 2007 to retrieve the family land and the alleged unlikelihood that he would take the risk of having his mother approach the authorities in 2007 to retrieve the land;

   • The omission of minor claims from the applicant's first written statement and evidence to the delegate that after the attack in 2000 he hid at his maternal uncle's residence and at his friend's in Kachagori; that other persons looked for him in these places; and that from 2007 local muslims would intimidate his mother when she went to temple;

   • The purported inconsistencies in the applicant's evidence about the role of the applicant's maternal uncle in assisting the applicant's mother with proceedings to recover the family land in 2000.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal 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.

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing.  The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel 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. 

The applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that he was an orphan who had grown up as a Buddhist and that he was the subject of persecution as a minority group in Bangladesh. The applicant maintained that the Tribunal’s decision was erroneous because his claim for protection had not been upheld. The applicant claimed to fear harm from Muslims and maintained that he should have been accepted as a refugee and that he had told the truth.

2. The applicant also made reference to documents that he provided to the Tribunal. The Tribunal’s reasons identify taking into account the evidence provided by the applicant, including the applicant’s supporting documents. It was a matter for the Tribunal to determine what weight to give to those documents. The Tribunal provided logical and rational reasons for the adverse credibility findings which included, in particular, the applicant’s return to Bangladesh in 2007.  Those adverse credibility findings were open on the material before the Tribunal.

3. In substance, the applicant’s submissions invite the Court to engage in an impermissible merits review. This Court has no power to review the merits. This Court cannot make fresh findings of fact. This Court cannot make a decision on compassionate grounds as it has no power to do so. The Court can only make a decision favourable to the applicant if it finds that the Tribunal has engaged in a relevant legal error. Nothing said by the applicant from the bar table identified any jurisdictional error. 

Consideration

Ground 1

1. In relation to ground 1, it was a matter for the Tribunal to determine what weight to give to the documents provided by the applicant to the Tribunal. The Tribunal was not bound to make further inquiry, and there was no easily ascertainable fact in respect of a critical matter identified so as to give rise to a duty to make an inquiry.  On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.  On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review.  There is no substance in the assertion that the Tribunal failed constructively to exercise its jurisdiction as alleged in ground 1.  No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, for the reasons already given, the adverse credibility findings by the Tribunal were open. The Tribunal did not determine the applicant’s credit on minor and trivial matters. The return of the applicant to Bangladesh in 2007 was an obvious and relevant consideration and it was reasonable and logical of the Tribunal to take into account.

2. The omission of other claims is equally a logical and rational and reasonable matter for the Tribunal to take into account. The inconsistencies taken into account by the Tribunal were also logical and rational matters that were open to the Tribunal to take into account on the adverse findings as to credit.  Accordingly, it was open to the Tribunal to find that the applicant was not a witness of truth. No jurisdictional error as alleged in ground 2 of the amended application is made out. 

Conclusion

1. Accordingly, the amended application is dismissed. 

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

Date: 22 September 2017