SZQPZ v Minister for Immigration
[2012] FMCA 268
•5 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQPZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 268 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether the Tribunal failed to accord procedural fairness – whether the Tribunal failed to consider supporting documents – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 91R, 476 |
| SZQQI v Minister for Immigration & Anor [2012] FMCA 221 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 |
| Applicant: | SZQPZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2041 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 27 March 2012 |
| Date of Last Submission: | 27 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2012 |
REPRESENTATION
| The Applicant: | In Person. |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 12 September 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2041 of 2011
| SZQPZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 12 September 2011, pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), seeking review of the decision of the Review Refugee Tribunal (“the Tribunal”), made on 11 August 2011, to affirm the decision of the respondent Minister’s delegate, made on 1 April 2011, to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of Bangladesh, of Barua ethnicity, who arrived in Australia on 29 September 2010 on a temporary business visa (see Court Book – “CB” – CB 2 to CB 3). He applied for a protection visa on 25 October 2010 (CB 1 to CB 66, including annexures).
Annexed to the application was a “Statement of Claims” (CB 26 to CB 30), in which the applicant asserted that:
1)He and his family were Buddhists. His father was a prominent Buddhist leader in the local community. The majority of the population in the district were Muslim ([1] – [2] at CB 26).
2)The applicant’s father was active in protesting against the Bangladesh National Party (“BNP”) and Jamat-e-Islam and in advocating the protection of minority rights. As a result of his father’s participation in these activities the applicant’s family, particularly his father, attracted the adverse attention of activist and political groups, including the BNP and Jamat-e-Islam. He and his family were the subject of threats and extortion and were, on occasion, attacked.
3)There had been several instances of past harm. He was kidnapped in December 2000 and beaten by sticks, and “chased” in September 2005.
4)He left his village in December 2000. The applicant left Bangladesh for Sri Lanka in April 2001. He has remained overseas since then, and only returned to Bangladesh on five occasions.
5)In his absence, his family, particularly his father, continued to be harassed, and his cousin was killed. He has had no contact with his family since 2006.
6)In general, Buddhists in Bangladesh are “tortured, discriminated, raped, killed and harassed” ([11] at CB 28). No action is taken by the police against individuals who harass or harm Buddhists ([16] at CB 29), rendering them “helpless”.
The Delegate
The applicant attended an interview with the Minister’s delegate on 12 January 2011 (CB 71 to CB 72). Following the interview he provided several documents to the delegate in support of his claims (CB 75 to CB 87), including:
1)A letter from Ven. Phra Chavali Pariponno (“Ven. Pariponno”) (CB 84); and
2)A letter from Ven. H. H. Dharmasen Mahathero (“Ven. Mahathero”) (CB 86).
On 1 April 2011 the applicant was notified that the delegate had refused his request for a protection visa (CB 88 to CB 103). While the delegate found, giving the applicant the benefit of the doubt, that some of his claimed instances of past harm may have occurred, they were not of such severity as to amount to persecution in the Refugee Convention sense. Nor was the treatment of Buddhists in Bangladesh sufficient, in and of itself, to ground a well-founded fear of harm (CB 101).
The Tribunal
On 30 April 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 109 to CB 112). He was invited to attend a hearing before the Tribunal on 28 June 2011(CB 122 to CB 123), which the applicant did. He was assisted by an interpreter in the Bengali language (CB 140 to CB 141).
Prior to the hearing, by letter dated 18 June 2011, the applicant reiterated his claims for protection and provided supporting media reports (CB 129 to CB 137).
By letter dated 12 July 2011 the applicant was invited to comment on information received from Ven. Pariponno by 4 August 2011 (CB 181 to CB 182). The applicant sought an extension of time (CB 184) which was denied (CB 185 and CB 187). On 4 August 2011 the applicant provided a second letter in support of his claims from Ven. Mahathero (CB 188). Further, on 8 August 2011 the applicant commented on the information provided by the Tribunal (CB 189 to CB 190).
The applicant was advised, on 12 August 2011, that the Tribunal had decided to affirm the decision of the delegate to refuse the grant of a protection visa to the applicant (CB 191 to CB 217). The Tribunal’s findings and reasons were set out in its decision record ([73] at CB 208 to [97] at CB 217).
The Tribunal expressed “comprehensive concerns” about the applicant’s claims ([81] at CB 209). Having set out its concerns in relation to each claim advanced by the applicant ([81](a) at CB 210 to [86] at CB 214), the Tribunal dismissed “… all the applicant’s specific claims of past harm against him and his family” ([87] at CB 214). The Tribunal gave cogent reasons for these findings (see [87] at CB 214 to CB 215).
The Tribunal also considered the applicant’s generic claim relating to Buddhists in Bangladesh and found that the level of discrimination faced by Buddhists was not sufficient to amount to persecution as understood within the Refugee Convention and relevant law (s.91R of the Act)
The country information provided by the applicant ([89] at CB 215), as well as the supporting statements ([81](f)(i) at CB 211 to [81](f)(vi) at CB 213), were considered by the Tribunal. The Tribunal accepted the authenticity of the supporting statements but expressed concern about the accuracy of the information contained within them ([81](f)(i) at CB 211). The Tribunal held that Ven. Mahathero’s statements did not “offer unambiguous support” to the applicant’s claims. It found that Ven. Pariponno had signed both supporting statements “… with no personal knowledge of the applicant.”
Given the above findings the Tribunal held that (at [94] at CB 217):
“… neither he nor his family have experienced harm amounting to persecution for reason of their religion (Buddhists), ethnicity (the Barua minority), political opinion (opposed to Muslims, the BNP/JeI political parties, campaigning against local abuses or, in the applicant’s case, any imputation to him of such views through his father), or any other Convention ground.”
Before the Court
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Bengali language. Mr T Reilly of counsel appeared for the first respondent.
In addition to the Court Book, leave was granted for the Minister to file a “Supplementary Court Book” (“SCB”) containing country information. The applicant had previously been served with a copy with the Minister’s written submissions.
Application to the Court
The application to the Court provides four grounds. They are:
“1. The Tribunal failed to accord procedural fairness:
(a) The Tribunal erred in law amounting to jurisdictional error in finding that my family members were harassed and threatened to be killed by fundamentalist Muslims and I was also kidnapped and that I did not face harm for my religious belief. The Tribunal found that there is no real chance that I shall be harmed for the reason of my membership of a particular social group as a Buddhist monk.
(b) The Tribunal failed to find that I face significant harassment prior to my departure for Sri Lanka though I provided several documents to the Tribunal which clearly establish that I was persecuted in Bangladesh for my religious belief and the Tribunal made an errors in law amounting to jurisdictional error.
2. The Tribunal failed to take into consideration of the letters from Ven. Mahathero and the letter from Ven. Pariponno at the time of dicision and made an errors in law amounting to jurisdictional error.
3. The Tribunal failed to consider me as a cridible witness and ignored the documents I submitted to the Tribunal in support of my claims and made errors of law amounting to jurisdictional error.
4. The Tribunal member failed to consider the disappearance of my father and his initiative to lead protest against the Muslim oppression to our community members and also found that I shall face societal discrimination in Bangladesh as Buddhist but I will not be harmed amounting to persecution for my religious belief and refused my claim. The Tribunal made an error in law amounting to jurisdictional error.”
[Errors in original.]
At the final hearing before the Court the applicant sought to press factual claims made to the Tribunal in support of his claim to be a refugee. At the first Court date in this matter I drew to the applicant’s attention that the grounds of his application for the most part sought to challenge factual findings made by the Tribunal. I sought to explain to the applicant that the issue before the Court was whether the Tribunal had fallen into legal error in assessing his refugee claim. The Court could not consider his claim to be a refugee as such.
The applicant explained that the application to the Court had been “written down” by his migration agent based on what he told him. I explained to the applicant that he would benefit greatly from competent legal advice and that when a lawyer on the panel of the Court’s “RRT Legal Advice Scheme” was assigned to provide advice he should attend at any conference and pay careful attention. I emphasised that he could still, in addition, engage his own lawyer rather than rely on his migration agent who clearly, given the state of the grounds in the application, was not qualified or competent to assist him in this way.
Despite this notice the applicant, albeit as is his right, chose to continue to rely on the migration agent. The “Certificate By Panel Member”, returned by counsel who had been assigned to assist the applicant, bears the notation: “He requested a written advice only” (“He” was plainly, in context, a reference to the applicant).
The applicant identified the agent who he claimed assisted him with the application to the Court as “Mohammed Shah Alam Syed”. [I note that this was not put to the Court in any evidentiary context.] A person with the same name appears to have assisted the applicant with his application for a protection visa (CB 23). He is there described as an agent registered with the Office of the Migration Agents Registration Authority (“OMARA”).
I have recently had occasion to note allegations of the involvement of migration agents (registered and unregistered), or community advisers, in the preparation of grounds submitted in applications for judicial review (see for example SZQQI v Minister for Immigration & Anor [2012] FMCA 221). It is understandable that persons who have recently arrived in Australia may, for linguistic, cultural or other reasons, feel more comfortable in seeking advice from those of similar background. However it is difficult to understand how this applicant, in light of the Court’s comments at the first Court date, did not take full advantage of the opportunity offered to him to obtain competent legal advice, but persisted in relying on what had been provided by his migration agent. In this context, I note that this applicant has some proficiency in English. [1. See CB 1. 2. There is no interpreter declaration in the Court Book in relation to the preparation of the protection visa application (CB 25). 3. The applicant gave some of his evidence to the Tribunal in English ([35] at CB 201).]
While it is of course for the applicant to conduct his case before the Court in the manner that he sees fit, I ask that those relevant persons in the Minister’s department responsible for the Minister’s litigation program refer this matter to the OMARA and/or any other relevant authority for investigation by a person qualified in the provision of legal advice.
Consideration
The grounds of the application therefore remain in the same terms as at the first Court date, and were not assisted in revealing legal error by anything the applicant said at the hearing. The applicant’s “submissions” sought only to assert the “truth” of what he had told the Tribunal, and to therefore challenge the Tribunal’s factual findings, including the findings as to credibility. No legal error is revealed in these circumstances (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405). Given that the Tribunal’s findings were all reasonably open to it on what was before it, and for which it gave cogent reasons probative of the evidence, the applicant’s submissions did not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25 (“Wu Shan Liang”)).
What must immediately be said about the Tribunal’s decision record is that it reveals a comprehensive and conscientious examination and analysis of the applicant’s claims and evidence. For example, the Tribunal was mindful that even though the applicant had had assistance from a migration agent in the past he was unrepresented and therefore, at its own initiative, considered whether the circumstances presented could give rise to any further “implied refugee claims” ([93] at CB 216).
The Tribunal is not required to make out the applicant’s case for him (See Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 per Keane CJ at [35], VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 and NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300) and is only obliged to deal with claims stated or clearly arising in the circumstances presented (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”) and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1). However, there is certainly no legal error in adopting a comprehensive and cautious approach to the assessment of refugee claims. This can only serve, in my view, to advance the quality of the decision.
Ground One
Ground one of the application asserts a breach of procedural fairness. “Particular” (a) asserts that the Tribunal fell into jurisdictional error because it rejected certain parts of the applicant’s factual claims. As Mr Reilly submitted, no jurisdictional error is revealed in circumstances where the applicant seeks only to complain about the Tribunal’s factual findings. As set out above, all of the Tribunal’s findings referred to by the applicant now were findings of fact within the exercise of its jurisdiction.
“Particular” (b) appears to assert jurisdictional error on the part of the Tribunal because it did not accept that documents the applicant provided “establish” that he was persecuted.
It appears from what the applicant said before the Court that the documents in question are the letters of support from religious leaders. These are dealt with below. For the remainder it merely seeks to cavil with the Tribunal’s factual findings in relation to the evidence he gave (both oral and documentary) and that such evidence should have been found to establish that he had a well-founded fear of persecution. This is simply a request for impermissible merits review (Wu Shan Liang).
The reference in ground one to procedural fairness therefore, in light of the “particulars”, can only be seen as some misunderstanding of what the term means at law. It does not mean that the Tribunal failed to accord procedural fairness simply because it did not accept the credibility of some parts of the applicant’s claims, or that what was left was such as to satisfy it that the applicant’s circumstances revealed a well-founded fear of persecution if he were to return to Bangladesh.
This was merely part of the evaluation and assignation of weight to the evidence before it. This is a matter for the Tribunal within the proper exercise of its jurisdiction (Wu Shan Liang).
Ground Two
Ground two asserts that the Tribunal failed to take into account letters from two religious leaders that the applicant submitted in support of his claims (see the letters at CB 84, CB 86 and CB 87). Before the Court the applicant complained that the Tribunal found the letters were fraudulent. He asserted the letters were “real”.
First, contrary to the assertion in ground two, the Tribunal did refer to and consider the letters from the religious leaders (see at [27] at CB 197 to [28] at CB 198, [55] at CB 203 to [56] at CB 204, [60] at CB 204 to CB 205, [65] at CB 206, [81] at CB 209 to CB 213 and [86] at CB 213 to CB 214). In these circumstances what is left, again, is simply a disagreement with the Tribunal’s findings. That is, the Tribunal did not find that the letters were such as to “establish” that he met the criterion for the grant of a protection visa (s.36(2) of the Act).
Second, the Tribunal made no finding that the letters were “fraudulent”. In fact, it found that, as it had previously discussed with the applicant at the hearing, it was “… prepared to accept their authenticity” ([81](f) at CB 211). The Tribunal however had concerns “… about the accuracy of their contents, and the meaning and weight that should be attached to them …”([81](f) at CB 211). It then set out, comprehensively, its concerns and its analysis of them. This again, and simply, was a proper process of evaluation of the evidence before it and the weight to be accorded to the evidence. As the Minister submits, this is a matter for the Tribunal that, in the circumstances, does not allow for intervention by the Court (see for example WAEE).
The Tribunal’s unchallenged (by any evidence to the contrary) account of the hearing reveals the following ([60] at CB 204 to CB 205):
“The Tribunal put to the applicant, pursuant to the procedure in s.424AA of the Act, particulars of information relating to the following:
· The letter from the Ven. Pariponno, to support his Business visa application, contained statements about the applicant’s involvement in childhood education, which, according to the applicant’s evidence, was false. These statements might lead the Tribunal to infer that the letter, if genuine, shows his preparedness to give false statements. This could lead the Tribunal to disbelieve the contents of his recent supporting statements.
· The certificates provided by the Ven.Dharmeswar Sraman (February 2008), the Ven. Sangharaja Dharmasen Mahathero (October 2000 and June 2009), and both Dharmeswar and Sangharaja (January 2008) might lead the Tribunal to infer that the applicant was recognised as a Buddhist monk and had connections in Bangladesh. The lack of corresponding evidence of any efforts to locate his family or otherwise help the applicant might lead the Tribunal to disbelieve that they had disappeared, and that he had a well-founded fear of persecution.
· The Tribunal added that, depending on its view of the applicant’s evidence as a whole, this information might lead it to doubt his credibility and to dismiss his refugee claims, and that it would then affirm the delegate’s decision to refuse him a protection visa.”
[Emphasis added.]
What was left unexplained before the Court was how, after contradicting the claim in the letter by his own evidence before the Tribunal, which was that what was claimed in the letter was false, the applicant could come to this Court and seek to argue, at least in relation to that letter, a position contrary to what he had asserted before the Tribunal. This ground is not made out.
Ground Three
To the extent that ground three asserts that the Tribunal “ignored” his documents, this is dealt with above. The complaint that the Tribunal failed to consider him as a credible witness fails, as set out above, as it is nothing more than a challenge to the Tribunal’s findings of fact. This does not rise above an impermissible request for this Court to engage in merits review (Wu Shan Liang and Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1).
Ground Four
Ground four asserts that the Tribunal failed to consider the claimed disappearance of his father, that he would face “… societal discrimination in Bangladesh …”, and that he would be persecuted for his religious beliefs.
The Tribunal did not fail to consider any of these aspects of the applicant’s claims as such a term in understood with reference to relevant authorities (WAEE):
1)The Tribunal considered, but did not accept, that his father had disappeared ([87] at CB 214).
2)The Tribunal accepted, and therefore “considered”, that he may “… face some societal discrimination in Bangladesh, as a Buddhist and a Barua …” ([92] at CB 216). The Tribunal however, as was open on what was before it, found in the circumstances that he would not be targeted by Muslims for this reason. The Tribunal went on to expand on this finding (parts of [93] at CB 216).
3)The Tribunal did consider whether he would face persecution for his religious beliefs (see [81] at CB 209 to CB 213, [86] at CB 213 and [91] at CB 216).
In all this ground, again, seeks impermissible merits review (Wu Shan Liang).
Additional Complaints
Before the Court, Mr Reilly, fairly, referred the Court to parts of the applicant’s affidavit, filed at the time of the making of the application to the Court, to ensure consideration of every possible area of complaint by the applicant. However nothing in that document revealed jurisdictional error on the part of the Tribunal:
1)Paragraphs 1 to 7 and 14 assert no complaint.
2)Paragraph 8: The Tribunal did consider the question of whether the applicant and his family had suffered harm in the past for reasons of religion. It gave reasons for its “comprehensive concerns” about the applicant’s claim of past harm ([81] at CB 209 to [82] at CB 213).
3)Paragraph 9: It asserts, without explanation, that the Tribunal failed to consider his well-founded fear of persecution on religious grounds. This is demonstrably and factually incorrect. The Tribunal did consider that question.
4)Paragraph 10: The claim that the Tribunal failed to consider documents he had submitted in support of his claims has already been dealt with above.
5)Paragraph 11: The Tribunal plainly did not fail to take into account the applicant’s oral evidence as alleged. It simply found that it had concerns, and therefore rejected some of what the applicant said. As for the remainder, the Tribunal was not satisfied that the applicant, in effect, met the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention.
6)Paragraph 12: The claim that the Tribunal did not make a bona fide attempt to deal with his application must be rejected. As Mr Reilly correctly, in my view, submitted the Tribunal considered the applicant’s claims in great detail and with care. To the extent that this complaint may seek to infer some bias on the part of the Tribunal, such a claim is neither distinctly made nor, in the absence of any other evidence, is it capable of being proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and per Kirby J at [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
7)Paragraph 13: Whether the applicant is entitled to a protection visa is not a task for the Court.
Conclusion
For the applicant to succeed the Court would need to discern, at least, jurisdictional error in the Tribunal’s decision. No such error arises from the applicant’s unmeritorious grounds or submissions. Nor can I otherwise see any such error on the material before the Court. The application should be dismissed. I will make an order accordingly.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 5 April 2012
0