SZRAX v Minister for Immigration

[2019] FCCA 1600

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRAX v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1600

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – consideration of the grounds of complementary protection – whether the adverse credibility findings by the Tribunal were open – whether the Tribunal complied with its statutory obligations in the conduct of the review – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 6, 476

Applicant: SZRAX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2155 of 2015

Judgment of: Judge Street

Hearing date: 11 June 2019

Date of Last Submission: 11 June 2019

Delivered at: Sydney

Delivered on: 11 June 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Gardner
MinterEllison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 11 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2155 of 2015

SZRAX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 Refugee Review Tribunal (“the Tribunal”) made on 29 June 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) 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 5 April 2010 as a holder of a Business Short Stay (subclass 456) visa. The applicant first applied for a protection visa on 30 April 2010 which was refused on 12 November 2010 and a differently constituted Tribunal affirmed that decision on 16 November 2011. The applicant appealed to the Federal Court, the Full Federal Court and the High Court unsuccessfully in each instance. The applicant applied for a second protection visa on the grounds of complementary protection on 6 November 2013.

3. The applicant claimed to fear harm in returning to Bangladesh because he is a Buddhist monk and a social activist and he fears he would be harmed by extremist Muslims.

4. On 28 May 2014, the delegate found the applicant failed to meet the criteria in respect of complementary protection in his second application for a protection visa.

5. The applicant applied for review on 25 June 2014. By letter dated 19 February 2015, the applicant was invited to attend a hearing on 23 March 2015. The applicant appeared on that date to give evidence and present arguments.

6. The Tribunal identified the background to the application for the protection visa and summarised the material provided by the applicant in support of his claims. The Tribunal correctly identified that it was confined to considering whether the applicant met the criteria in respect of complementary protection under s 36(2)(aa) of the Act.

7. The Tribunal identified having a number of credibility concerns about the applicant’s evidence which led the Tribunal to find that the applicant is not a credible witness and that he is not being truthful in relation to some aspects of his claimed events in Bangladesh or his reasons for leaving Bangladesh.

8. The first reason provided by the Tribunal identified the article that the applicant had provided in support of a claimed attack in 2004. The Tribunal found that article was fabricated and that that impacts poorly on the applicant’s credibility and truthfulness. The Tribunal also identified a number of concerns in relation to the claimed attack in 2004. The Tribunal referred to the absence of reference to the attack in the applicant’s written claims for his first protection visa application and referred to the applicant’s explanation in that regard, including psychiatric reports, but was not satisfied that the same explained the applicant’s lack of reference to the 2004 attack in his first application for protection. The Tribunal was not satisfied the applicant was attacked in 2004 as claimed.

9. The Tribunal referred to a statement provided by a person allegedly with the applicant at the time of the attack and was not satisfied the statement is a reliable account of what the applicant experienced in Bangladesh and did not overcome the Tribunal’s concerns in respect of the applicant’s credibility. In light of the Tribunal finding the applicant had provided other fraudulent documents, the Tribunal placed limited weight on the other documents provided by the applicant.

10. The Tribunal also took into account that the applicant raised new claims at the hearing that someone had attempted to kidnap his nephew. The Tribunal found the applicant’s evidence in relation to this to be unpersuasive. The Tribunal found the applicant’s description of the attempted kidnapping unconvincing. The Tribunal did not find the applicant’s explanations in respect of the attempted kidnapping to be credible.

11. The Tribunal referred to the applicant’s claim that after he was attacked in 2004 he was forced to flee to India.

12. The Tribunal noted the applicant said he subsequently returned to Bangladesh one year later, including to his home area. The Tribunal considered that the applicant voluntarily returning to Bangladesh on a number of occasions suggests that he was not fearful for his life.

13. The Tribunal did accept that the applicant was physically assaulted in 2002, but considered that the applicant had exaggerated this assault and that his injuries were minor and did not accept that he suffered a serious assault.

14. The Tribunal did not accept the applicant was assaulted or mistreated after he left a particular place where he was a student in 2002. In particular, the Tribunal did not accept that the applicant was assaulted in 2004. The Tribunal did not accept the applicant left Bangladesh because of any fear of harm. The Tribunal found the applicant’s voluntarily return to Bangladesh each year did not support any such claim.

15. The Tribunal also found the applicant’s oral evidence in relation to his father’s death to be unconvincing. The Tribunal found the applicant’s evidence in that regard to be vague and unpersuasive and was not satisfied the applicant had been truthful in relation to the circumstances of his father’s death.

16. The Tribunal referred to the applicant’s claimed fear of harm from Islamic Chhatra Shibir (“ICS”) and other extremist Islamic groups. The Tribunal was not satisfied the applicant has any profile as a political activist.

17. The Tribunal was not satisfied there were 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 that he will suffer significant harm because of his former role in the Buddhist Students Association or previous adverse attention of the ICS.

18. The Tribunal accepted the applicant had been involved in one protest in Martin Place. The Tribunal was not satisfied the applicant has a profile as a Buddhist social activist or would be involved in political protests if he were to return to Bangladesh.

19. The Tribunal was not satisfied that the country information suggests that there is a real risk of the applicant being harmed for being involved in an isolated protest against the treatment of Buddhists.

20. The Tribunal accepted the applicant had been ordained as a monk and lived full time as a monk in Bangladesh, India and Thailand, but no longer lives as a monk in Australia. The Tribunal was not satisfied that the applicant has refrained from publishing political articles because of a fear of harm to do so.

21. The Tribunal was not satisfied the applicant would publish articles if he were to return to Bangladesh or would refrain from doing so because of fear given that he has not published articles since leaving Bangladesh in 2004 despite being free to do so if he wanted to. The Tribunal referred to the applicant’s statement that his political activities are contrary to his religious beliefs. The Tribunal was not satisfied that there is a real risk the applicant would be subjected to significant harm as a Buddhist monk or because of his religious publications.

22. The Tribunal referred to other country information and, in particular, in relation to Buddhists in Bangladesh. The Tribunal found the chance of the applicant being harmed because of his Buddhist religion or his Barua ethnicity is remote.

23. The Tribunal 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 that he will suffer significant harm because of a lack of property or a home there.

24. Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that 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 will suffer harm.

25. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 3 August 2015. On 10 September 2015, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table the applicant indicated that his family had provided him with the fraudulent article and that he had not appreciated that the article was fraudulent. The applicant’s submissions in relation to the fraudulent article do not identify any jurisdictional error by the Tribunal in the adverse credibility findings. The fraudulent article was only one of the matters taken into account by the Tribunal in its adverse credibility findings in respect to the applicant’s claims. Those adverse credibility findings cannot be said to lack an evident and intelligible justification. The applicant’s disagreement with the adverse credibility findings does not identify any relevant error.

4. The applicant also indicated that he had been working in Australia, been here for a long time and wanted another chance. This Court does not have power to determine the matter on compassionate or discretionary grounds. This Court cannot review the merits. The applicant’s submissions from the bar table, in substance, invited merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. That the RRT member a jurisdictional error by failing to comply with the Refugee Convention 1951.

   2. That the RRT member denied me natural justice by imposing false fraudulent blame on me it decided in part that I was not a Refugee, which I believe was based on misunderstanding and misconstruction on my factual truth.  

Ground 1

1. The proposition that the Tribunal was required to assess the applicant’s claims under the Refugee Convention in respect of his second application for protection are misconceived and incorrect. The Tribunal was correct in law to only consider the applicant’s claims on the grounds of complementary protection given that the applicant had already made an application for protection that had been refused. No jurisdictional error is identified by ground 1.

Ground 2

1. In relation to ground 2, the reference to being denied natural justice by imposing a false fraudulent blame on the applicant appears to be a disagreement with the adverse credibility findings. The applicant does not dispute that he provided the Tribunal with a fraudulent document. The applicant takes issue with his knowledge of the same and blames his family members.

2. The adverse credibility findings by the Tribunal as summarised above were clearly open and the applicant’s disagreement with the same as referred to above does not identify any error.

3. On the face of the material before the Court the applicant had a real and meaningful hearing before the Tribunal. 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.

4. Insofar as the applicant asserts that the decision was based on a misunderstanding or misconstruction of his evidence, no such misunderstanding or misconstruction by the Tribunal has been identified. It was not necessary for the Tribunal to determine whether the applicant met the criteria under the Refugee Convention given that he had earlier applied unsuccessfully for a protection visa and that the Tribunal was only required to consider his claims as against the criteria for complementary protection. On the face of the Tribunal’s reasons the Tribunal correctly identified the relevant law and made findings that were open to it for the reasons given by the Tribunal. No misunderstanding or misconstruction of either the evidence or of the law has been identified. No jurisdictional error is made out by ground 2.

5. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 19 July 2019