SZRAX v Minister for Immigration
[2013] FMCA 116
•28 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRAX v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 116 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal breached s.424A of the Migration Act 1958 and denied the applicant natural justice. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZRAX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 40 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 February 2013 |
| Date of Last Submission: | 19 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2013 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 40 of 2012
| SZRAX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh who arrived in Australia on 5 April 2010. On 30 April 2010 he applied to the Department of Immigration and Citizenship for a protection visa, alleging that he feared persecution in Bangladesh because of his religious beliefs. That application was refused by a delegate of the first respondent (“Minister”) on 12 November 2010. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-17 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
The applicant made the following claims in his protection visa application and in a statement attached to that application:
a)he is a Buddhist monk and he had been persecuted in Bangladesh for his religious beliefs;
b)his father had owned a grocery business and land in Fatickchari. In 1991 his father was forced to leave having lost his business and property to BNP and Jamaat activists who were strong in that area;
c)his family moved to Rangamati in the Chittagong Hill Tracts (“CHT”) in 1993. The Buddhists in the CHT had experienced persecution and harassment at the hands of the BNP from 1991. A communal dispute broke out in February 1997 between mainland Bangladeshi settlers and the residents of the CHT and, with the assistance of the authorities, the mainland Bengalis persecuted members of the Buddhist religion, looted their shops and took their properties. His father sent him away to a Buddhist temple in Chittagong in 1997 and he was entrusted to the care of a guru, the Venerable D M;
d)he was ordained as a Buddhist monk in 2002;
e)when he was in college he was involved with the Buddhist Students Association, firstly as a member and then as the general secretary. This brought him to the attention of the student wing of the Jamaat e Islami Bangladesh, the Islami Chattra Shibir (“ICS”);
f)after the election of the BNP-Jamaat coalition government in 2001 local Islamic activists started to harass and persecute opposition parties and members of minority religions. He protested and complained to community leaders, published details in a newspaper, organised protests and distributed leaflets. As a result, he became the victim of physical and verbal abuse from Islamic activists;
g)in April 2002 he was actively involved in protests following the assassination of a well-known Buddhist monk by BNP-Jamaat activists. The BNP-Jamaat activists threatened to kill him if he continued his protests and the police failed to provide him with protection when he tried to lodge a complaint;
h)in November 2002, he left the area and moved to another Buddhist temple. The activists followed him to the new temple and threatened him;
i)in 2004 his guru arranged for him to study Buddhism at the University of Calcutta in India. After completing his studies in December 2007 he went to Thailand to study Buddhism until he came to Australia;
j)in February 2010 the army and mainland Bangladeshis attacked Buddhists in the CHT. His father was severely injured and died on 25 February 2010;
k)Buddhists were not safe in Bangladesh. They were persecuted and suffered discrimination in employment and politics. The government supported mainland Bangladeshi Muslims in settling in the CHT. The mainland people had taken the Buddhist’s land, employment, political positions and influence in the local administration; and
l)he feared harm from the ICS and fundamentalist Muslim extremists who had the support of the authorities. If he returned to Bangladesh he would be persecuted for his religious beliefs and face discrimination because of his profile as a Buddhist monk and student leader.
On 27 May 2010 the applicant provided, among other things, the following documents to the department:
a)a birth certificate and statement dated 26 May 2004 stating that the applicant was an inhabitant of the Fatickchari District, Chittagong;
b)a letter from the mayor of Rangamati dated 6 May 2010 stating that the applicant was a permanent resident of Rangamati;
c)a document dated 24 April 2010 from the Venerable S M, the chief abbot at the second temple where the applicant allegedly lived in Chittagong, certifying that the applicant was a resident monk in the temple from November 2002 to July 2004. The Venerable S M stated that he gave the applicant shelter from the ICS and arranged his passport and passage to India in July 2004;
d)a letter dated 22 April 2010 from a college stating that the applicant was a member of the Buddhist Students Association and general secretary from November 1999 to November 2002. The authors of the letter stated that they had been told that on several occasions the applicant had been physically and mentally abused by members of the ICS; and
e)school and academic documents from Bangladesh, India and Thailand.
Tribunal
On 14 January 2011 the applicant provided a statutory declaration in which he made the following claims:
a)when he was a college student the ICS organised weekly rallies and its members would enter classes and force students to attend their rallies. He refused to attend the ICS rallies. He attended and gave speeches at rallies to protest the abuse and harassment of Buddhists and, as a result, he was verbally and physically abused. He spoke out against the ICS to groups of other Buddhist monks during weekly religious discussions;
b)in 2001 he published a poem in a Buddhist magazine in Bangladesh protesting the Taliban’s destruction of the Buddhist statues in Afghanistan;
c)a member of the ICS had informed on him about his protesting the assassination of a well-known Buddhist monk and as a result he was attacked and severely injured;
d)for the first few months after he moved to another temple in November 2002 he saw members of the ICS in the area and did not venture out of the temple. He generally kept to the temple and would only go out with a group of other monks;
e)in May 2004 while returning to his temple from another, he was attacked by members of the ICS who recognised him from his time at college. Another monk he was travelling with escaped and got help. The applicant was seriously injured and was taken to a clinic;
f)the temple abbot made a police complaint the next day but the police did not take any action. A couple of days later some extremists came to the temple and warned the abbot that if he did not withdraw his complaint, they would kill the applicant and harm the temple. The abbot arranged the applicant’s passport and visa and sent him to India to save his life and the temple;
g)he had not previously mentioned the incident because he had not had the relevant paperwork and had waited until he had supporting documents;
h)he was an abbot in a temple in India from 2004 until he left that country. He taught Buddhism every Sunday at another temple and became the news secretary of a yearly Buddhist magazine. The ICS had a presence in India and would have been aware of his activities;
i)he did not seek protection in India or Thailand because he did not believe there were protection visa opportunities;
j)between 2005 and 2007 he returned to Bangladesh several times for three days at a time to renew his visa. He stayed in areas free of Islamic influence. His father had also been very ill at the time and he needed to see him. He usually stayed at the home of the person who had sponsored his education to be a monk;
k)he was not sure that he would satisfy the condition for parental permission required to be a monk in Bangladesh. His mother would not give him permission as his father had passed away and she worried that he would be in danger as a monk;
l)he was afraid his teacher would not want him back because he would put the temple in danger; and
m)in Australia he practised Buddhism at home twice a day, went to a Thai temple twice a month and to special Buddhist ceremonies. He also participated in community celebrations at the Indonesian temple and other functions organised by the Australia Bangladesh Buddhist Association.
On 24 February 2011 the applicant provided the following further documents:
a)a letter from the Venerable D M stating that he had known the applicant since the latter’s childhood. He stated that the applicant became a target for the ICS after protesting the killing of another Buddhist monk. The Venerable D M stated that he sent the applicant to another temple in Chittagong and from there he went to India in 2004. He claimed that the applicant would be at risk if he returned to Bangladesh;
b)a “Prayer for a General Diary” dated 15 May 2004 being a statement of the Venerable S M to the police detailing the circumstances of the ICS’s attack on the applicant, the applicant’s injuries and his admission to hospital;
c)a record of a temple meeting held on 25 May 2004 at which it was decided to withdraw the general diary complaint regarding the applicant’s attack and send the applicant to India;
d)a letter dated 20 May 2010 confirming the applicant’s involvement in an Indian Buddhist publication and a translation of an article written by the applicant in that magazine; and
e)a letter from the Supreme Sangha Council of Bangladesh dated 1 June 2010 certifying that the applicant was ordained as a novice in 1997 and then as a Buddhist monk in October 2002.
The applicant appeared before the Tribunal on 1 March 2011 and 25 November 2011 to give evidence and present arguments. On the first hearing day, the applicant made the following claims:
a)his family moved to Rangamati because his father had problems with the local chairman and his family was tortured and beaten;
b)his father could not afford to send him to high school so he sent him to be educated by the monks;
c)the college he attended discriminated against Buddhists. It changed the curriculum by making the subject of Pali optional and did not count it in the final marks for the senior secondary certificate;
d)while he was in college he was a novice monk and taught religion to younger children;
e)in 2002 he was beaten and injured by three members of the ICS, including a leader of the ICS. The police would not take his case because they did not want to fight the powerful BNP-Jamaat parties;
f)while living in India, he returned to Bangladesh three times to visit his family and renew his visa;
g)he had not been involved with any Buddhist monastery in Australia because there were no Bangladeshi Buddhist monasteries and he did not have a place at any other temple. He had lived in the manner of a monk for a month but was discontented and his guru gave him permission to live as a layperson; and
h)he is a member of the Burua ethnic group and had joined the Barua Association in Australia.
On 25 November 2011 the applicant made the following additional claims:
a)after he came to Australia his parents lived in Rangamati. While on a purchasing trip for his retail business, his father was caught in a conflict between Muslims and Buddhists. His father had been sick but the injuries he sustained worsened his condition and contributed to his death;
b)he did not know all the details concerning his father’s death because his guru, who told him about his father’s death, had not had all the details and he did not talk to his mother about it;
c)his mother had moved to Fatickchari to live with his sister;
d)he could not move to another part of Bangladesh because it is a small country and the ICS would target him wherever he lived; and
e)because of his educational background, he would be more active if he returned to Bangladesh. This and his past profile would bring him to the attention of the ICS.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)whilst accepting that the applicant’s family might have moved to the CHT when he was a child and remained living there for a number of years, the Tribunal did not accept that they remained in the CHT until his father died in 2010. The Tribunal did not accept that the applicant had had a long residence or association with Rangamati or the CHT and did not consider that he would return there if he returned to Bangladesh. In this regard, the Tribunal noted that:
i)the applicant gave evidence that his mother and sister lived in Fatickchari and that his family did not own land in Rangamati. The applicant’s family also did not appear to be members of any of the CHT’s indigenous groups;
ii)the applicant had been educated in Chittagong since he was fourteen and had only spent a few years in Rangamati before moving to Chittagong. The Tribunal found that the applicant had not lived in the CHT after commencing his training as a novice in about 1997;
iii)the applicant provided two documents which were difficult to reconcile: one document dated in 2004 stated he was an inhabitant of Fatickchari and the other dated in 2010 stated he was a permanent resident of Rangamati even though he had not lived in Bangladesh since 2004; and
iv)the applicant’s evidence that his father was injured in February 2010 whilst on a purchasing trip in Rangamati was inconsistent with his evidence that his family had lived in Rangamati in 2010 and that his mother had left when his father died.
b)the Tribunal accepted that the college which the applicant attended took some administrative actions which disadvantaged him in that they changed the curriculum to make the subject of Pali optional and did not count it in the marks for the senior secondary certificate. However, the Tribunal noted that the applicant completed his high school and college qualifications and was admitted into the University of Calcutta to complete his tertiary education and into a Thai university for a Master’s degree. The Tribunal therefore found that the applicant’s treatment at his college had not resulted in any educational disadvantage to him;
c)the Tribunal accepted that the applicant had been born into a Buddhist family and that he had been trained as a monk. It accepted that the applicant might have been targeted, harassed and threatened in 2002 by members of the ICS during his time at college. However, the Tribunal found the applicant’s evidence regarding an alleged physical attack in 2002 by three members of the ICS, including a leader of the ICS, vague and lacking in detail. The Tribunal found that the applicant did not give satisfactory oral evidence about the nature or circumstances of the claimed physical attack and its effect on him and therefore it did not accept that he was physically attacked as claimed;
d)the Tribunal accepted that as a result of the conduct of the ICS the applicant moved to another temple in Chittagong in November 2002 and stayed there for a year and a half. However, the Tribunal did not accept that the applicant continued to face threats and harm after he moved to that temple given that his evidence on his problems there was vague and lacking in detail. The Tribunal found implausible and did not accept the applicant’s claim that he had remained in hiding in the temple because members of the ICS had been waiting for him outside the temple on an indefinite basis;
e)the Tribunal found that the applicant was not attacked and injured by a group of ICS activists on his way back to his temple in Chittagong in May 2004 but rather introduced the incident to support his claims that he left Bangladesh in 2004 to escape persecution. In this connection, the Tribunal noted that the applicant did not include this claim in his lengthy and reasonably detailed original statement. The Tribunal rejected the applicant’s explanation that he had not included the incident because he had had no documentary evidence to support the claim, noting that even though his claim about an attack in May 2002 had not been supported by corroborative evidence, he had included it in his original statement. The Tribunal found that there was no plausible reason for the applicant to include one attack but omit the details of a second attack. The Tribunal therefore found the documents provided by the applicant to support his claim to have been attacked in 2004 to be of no probative value. The Tribunal also noted that the applicant claimed that he went to the police in 2004 but found that his oral evidence did not provide satisfactory and relevant detail;
f)the Tribunal found that the applicant left Bangladesh in 2004 to pursue his Buddhist and Pali studies in India rather than to escape persecution by members of the ICS or related groups. The Tribunal noted that during his years of study in India the applicant lived at a Buddhist temple and taught Buddhist studies to school aged children and novices. The Tribunal also noted that the applicant had returned to visit his family and his guru in Bangladesh on a number of occasions during that period. The Tribunal did not accept that the applicant would have returned to visit his family and guru in Chittagong if he had feared he would be harmed by student extremists from the ICS who also lived in the Chittagong area, particularly given that the BNP-Jamaat coalition had been in government until 2007;
g)the Tribunal found that the applicant left India in 2007 and moved to Thailand to pursue higher studies in Buddhism and Pali, noting that he was occupied with his studies as well as teaching children and novices during his time in Thailand;
h)the Tribunal did not accept that the applicant’s father died as a result of injuries he sustained when he was caught up in violence in the CHT. The Tribunal noted that the applicant was unable to provide any detailed evidence about the circumstances of his father’s death and was evasive when asked questions about his father’s situation. The Tribunal did not accept the applicant’s evidence that he had not spoken to his mother about the circumstances of his father’s death;
i)the Tribunal accepted that the applicant was a Buddhist monk and that he was subject to harassment and threats by local members of the ICS group whilst at college and that he moved to another area to avoid further mistreatment. However, for the following reasons, the Tribunal did not accept that if the applicant returned to Bangladesh he would face persecution from members of the ICS or other related extremist groups for reasons of his Buddhism, his status as a Buddhist monk or his past profile as a student activist with the Buddhist Students Association in 2001 and 2002:
i)the applicant had been away from Bangladesh since 2004 and had no current association with any Buddhist activist group in Bangladesh. The Tribunal therefore found that the applicant did not have a high profile in Bangladesh as an activist or as a Buddhist monk;
ii)whilst accepting that the applicant had been a contributor to a number of Buddhist publications in India, the Tribunal found that the articles were published many years in the past and did not accept they were widely read outside the Buddhist community and that even if they were, they were so dated that they would not give the applicant a current religious or activist profile; and
iii)country information indicated that the Bangladeshi state did not engage in state-based persecution or discrimination against the Buddhist minority or Buddhist monks and the government had taken significant and effective steps to protect religious minorities, including Buddhists, from harm from non-state actors. Further, there were no specific reports which indicated that the ICS or Jamaat Islami had specifically targeted Buddhists or Buddhist monks in Bangladesh in recent years;
j)the Tribunal accepted that the applicant was a member of the Barua ethnic group but did not accept that he faced harm as a result of his membership of that group. The Tribunal noted that there was no information before it suggesting that the Barua people were subjected to any mistreatment by state authorities or non-state actors because of their ethnicity and culture. The Tribunal further noted that country information suggested instead that the state authorities had taken strong steps to protect minority groups in Bangladesh;
k)the Tribunal noted that country information indicated that there was a long history of ethnic conflict in the CHT and that violence erupted from time to time. However, having found that the applicant and his family had not lived in the CHT for long and not accepting that the applicant’s father was injured during the February 2010 violence in the CHT, the Tribunal did not accept that the applicant would return to that area if he returned to Bangladesh. The Tribunal found that the applicant would not be at any risk of being harmed during any ethnically or religiously based conflict in the CHT; and
l)the Tribunal noted that country information suggested that Buddhists suffered a certain amount of societal discrimination in Bangladesh but that this had improved and the government was taking steps to rectify any state-based discrimination. The Tribunal accepted that even though the applicant had received a high school education in Bangladesh and had had overseas opportunities for further study, it might be difficult for him to get a position in a temple in Bangladesh or to find employment, given his absence overseas. However, taking into account the country information, the Tribunal did not consider that the level of discrimination in Bangladeshi society amounted to persecution within the meaning of the Convention and accordingly did not accept this claim.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.That the RRT member made a jurisdictional error by failing to comply with 424A of the Migration Act.
2.That the RRT member denied me natural justice by not believing that me or my family lived long term in the CHT, and it gave no reasons for this, but by denying that I was a long term residence of the CHT, it decided in part that I was not a refugee.
Breach of s.424A
Section 424A of the Act relevantly provides:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
As observed by the Minister in his written submissions, the information relied upon by the Tribunal in reaching its decision was information which the applicant had given it for the purposes of the review or which was independent country information. Both of those classes of information fall within the scope of the exceptions to the operation of s.424A(1) found in s.424A(3). As a consequence, the Tribunal did not breach s.424A and thus the first ground of the application is not made out.
Denial of natural justice
Both in his written submissions and in his address to the Court the applicant stressed his dissatisfaction with the conclusions reached by the Tribunal and advanced various reasons for that dissatisfaction. However, each one of those reasons was essentially a criticism of the fact that the Tribunal had reached a particular factual conclusion, not that any of those decisions were unsupported by evidence or tainted by some other legal error.
A rejection of a party’s evidence and contentions is not, without more, a denial of natural justice. At this point it is worth noting that the applicant made no suggestion that the Tribunal was biased and thus it is not necessary to consider the natural justice bias rule. In the context of Tribunal reviews, the natural justice hearing rule has been codified by s.422B in those provisions found in div.4 of pt.7 of the Act. Of the provisions found in div.4 of pt.7 of the Act, ss.424A and 425 are the most important. The former has already been considered in the context of the first ground of the application. As to the latter, it required the Tribunal, in the circumstances, to invite the applicant to a hearing and to ensure that he was aware of the issues which might be determinative of the review. It was not suggested that the applicant was unaware of the relevant issues, and it is not apparent that he was. Nor was it suggested that the Tribunal’s factual conclusions were brought about, in some way, by a deficient hearing and thus a denial of the right to an invitation to a real and meaningful hearing guaranteed by s.425. None of the other provisions found in div.4 of pt.7 of the Act appear to have had particular relevance in this matter and it was not suggested that any did.
For these reasons, I am not persuaded that a breach of s.425 or any other provision of div.4 of pt.7 of the Act has been made out. As a consequence, I conclude that the second ground of the application does not disclose a basis upon which the Tribunal’s decision should be set aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 28 February 2013
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