SZRSC v Minister for Immigration

[2013] FCCA 121

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRSC v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 121

Catchwords: 
MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error. 

Legislation: 
Migration Act 1958 (Cth), s.425

Cases Cited:
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126

SZMSF v Minister for Immigration and Citizenship [2010] FCA 585

Applicant: SZRSC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1720 of 2012

Judgment of: Judge Barnes

Hearing date: 10 April 2013

Delivered at: Sydney

Delivered on: 10 April 2013

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $4,800. 

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 1720 of 2012

SZRSC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 9 July 2012.  The Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicant a protection visa.  The Applicant, a citizen of Bangladesh, arrived in Australia in May 2011.  He applied for a protection visa on 27 June 2011.  In his protection visa application he claimed that he was a Hindu who had worked as a welder in Singapore for periods of time between 1999 and 2009.  The Applicant claimed that, using money he earned in Singapore, his wife bought land in Bangladesh in May 2009 before he returned to Bangladesh.  When he went to occupy the land, the previous owner denied selling it and a dispute over the land turned into a religious dispute between Hindus in the village, who supported him, and local Muslims.

2. The Applicant claimed that in March 2011 Muslims had come to his house, beaten him and his family and ransacked the house.  He claimed that he had attempted to make a complaint to the police, but they refused to accept it.  He also claimed that on his way home from the police station, Muslims had attacked and beaten him.  He claimed that he was afraid to return to the country because the Muslims might kill him.  Included in his claims was a claim that when his home was attacked, his wife had been threatened and pushed and his daughter had been injured.  He claimed he took his family to Dhaka and left them there when he travelled to Australia in May 2011. 

3. The Applicant attended an interview with a delegate of the First Respondent on 11 August 2011.  The Applicant provided the Department with documents in support of his claims, including medical records and a letter of support from a Mr Sarkar (to which I will return) as well as copies of photographs and internet news articles in relation to the situation for Hindus in Bangladesh.

4. The Application was refused on 14 October 2011 and the Applicant sought review by the Tribunal.  He attended a Tribunal hearing on 2 April 2012.  The only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal’s account in its reasons for decision.  The Tribunal recorded, among other things, that at the Tribunal hearing the Applicant claimed for the first time that he was attacked in August 2009, shortly after the land dispute began, and that Muslims had kicked and threatened to kill him.

5. The Applicant provided the Tribunal with additional documents in support of his claims, including his trade qualification records, documents from a hospital in Dhaka, a copy of a prescription and internet articles. 

6. In its findings and reasons the Tribunal commenced by considering the Applicant’s ability to participate effectively in the Tribunal hearing in light of a letter that the Applicant had provided from a counsellor at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) dated 26 July 2011.  A copy of that letter is in evidence before the Court as an Exhibit.  The Applicant confirmed that this was the only report from STARTTS before the Tribunal in relation to his review application.

7. In that report, the STARTTS counsellor recorded that he had conducted an assessment of the Applicant on 26 July 2011 and that the Applicant reported “a range of severe signs and symptoms associated with posttraumatic stress, depression and anxiety”, which the counsellor listed.  These included poor memory and concentration.  The counsellor stated that “[a]s a consequence of this symptomatic presentation, [the Applicant] is not capable of undertaking paid employment”.

8. As the Tribunal recorded, the STARTTS letter referred to the Applicant’s capacity as at July 2011 to undertake paid employment.  However the Tribunal considered the letter relevant in assessing whether the Applicant had the capacity to participate in the Tribunal hearing of 2 April 2011, notwithstanding that the counsellor did not express any opinion about that issue.  The Tribunal also had regard to the fact that in the course of the hearing the Applicant claimed he had been “mentally deranged or not in a right state of mind” at the time of the Departmental interview and “related this to his failure to produce evidence he believed to be crucial to his application such as his welding certificate”. 

9. However the Tribunal found that the Applicant had “responded appropriately” to its questions and was able to address issues raised at the hearing.  Having taken into account the letter from the STARTTS counsellor, the Tribunal concluded that the Applicant was able to participate effectively in the Tribunal hearing. 

10. The Tribunal addressed the Applicant’s claims, but on the basis of an adverse credibility finding it rejected his claims in their entirety. 

11. The Tribunal indicated that, as it had put to the Applicant at the hearing, it had difficulty accepting that he was telling the truth about the problems he had in Bangladesh.  While the Tribunal accepted that he had worked as a welder in Singapore before returning to Bangladesh in July 2009, it had difficulty accepting that on 16 May 2009 “his wife gave a Muslim 15 lakhs … trusting that a transfer of land would be registered when the applicant himself returned from Singapore to Bangladesh”.  The Tribunal did not accept that the Applicant’s wife would hand over this amount of money without getting any documentation in return.  It found the Applicant “was unable to give any cogent explanation” for this claimed event and that, in light of the fact that it was central to the Applicant’s claims that there were ongoing disputes and conflicts between Hindus and Muslims, it was implausible that the Applicant’s wife would have paid the money entirely on trust, as the Applicant claimed at the hearing, without getting anything in return. 

12. The Tribunal addressed the Applicant’s claim at the hearing that he had had no money to arrange a lawyer in connection with the land transaction because he had spent the money on the land.  However, at the Departmental interview the Applicant had told the delegate that he had gone to see a lawyer, but the lawyer had told him there was nothing the lawyer could do because his wife did not get any documents before paying the money.  The Tribunal had regard to the Applicant’s denial that he had said this, and his explanation that if he had said it, it had been “wrong” and “he had not been in a right state of mind at the time of the Departmental interview”.  However the Tribunal found it difficult to accept that “any mental health problems the applicant may have had would have led to him inventing the claim that he had in fact gone to see a lawyer”.  The Tribunal referred to shifts in the Applicant’s evidence in forming the view that “[he] was the sort of person who was prepared to say anything which he believed would help his case”.  It did not accept the analogy he attempted to draw with the fact that he had paid $10,000 to an agent who assisted him to attain an Australian visa. 

13. The Tribunal also considered it significant that in his protection visa application and his Departmental interview, the Applicant had not claimed that anything of significance had happened between his return to Bangladesh in July 2009 and the claimed attack on his home in March 2011.  However at the Tribunal hearing the Applicant claimed that he had been assaulted in August 2009 when he had gone to take control of the land he claimed his wife had bought and had seen a doctor and been given medication.  He also claimed at the hearing that in November 2010 he had started having “intense pain in his legs”, had consulted a doctor and obtained X-rays and that there had been a recurrence of such pain, which he described as “back pain”, as a result of his work as a cleaner in Australia.  He claimed he had also consulted a doctor here. 

14. In relation to such conflicting claims the Tribunal referred to the X-ray films and medical certificates from Bangladesh produced by the Applicant dated between November 2010 and March 2011 and an Australian prescription of March 2012.  The Tribunal accepted the Applicant suffered from back pain.  However, having regard to the fact that prior to the Tribunal hearing he had made no mention of a supposed incident in August 2009 in which he claimed he was kicked in the back, it did not accept that this incident occurred as he had said or that it was the cause of his back pain.

15. The Tribunal also had regard to the fact that, as it put to the Applicant, in his protection visa application he had claimed he was attacked and beaten in March 2011, whereas at the Tribunal hearing he had produced a lot of evidence to corroborate an account of an attack in August 2009 which he had never mentioned before and had claimed that he had suffered no injury in March 2011.

16. The Tribunal also found it difficult to understand why the Muslims would have attacked the Applicant’s home in March 2011 in circumstances where, on his own account, he had been trying to take possession of the land since he returned to Bangladesh in July 2009.  The Tribunal was of the view that it appeared from the Applicant’s account that he had no prospect of getting the land back, that he represented no threat to the Muslims, and that there did not appear to be any reason they would have attacked his house or threatened to kill him and his family if they did not leave the area.

17. The Tribunal considered the letter dated 10 March 2011 provided to the Department in support the Applicant’s claims from a Mr Sarkar who claimed to live in the same village as the Applicant and to have witnessed his problems.  The letter referred to an attack on the Applicant and his family “[l]ast March”, to a Hindu protest and a subsequent Hindu-Muslim conflict and claimed “they” aimed to kill the Applicant and his family.  The letter also stated that the writer knew that the Applicant “is applied (sic) for refugee status in Australia”.

18. The Tribunal pointed out that the fact that the letter referred to the Applicant having applied for refugee status suggested that it was written much later than 10 March 2011 as his protection visa application was not made until 27 June 2011.  It considered the Applicant’s explanation at the hearing that he had asked Mr Sarkar to issue a letter on the day that the incident happened.  However the Tribunal had regard to the fact that the letter actually stated that the incident had happened “last March”, which would have been March 2010, whereas the Applicant claimed the incident took place in March 2011.

19. The Tribunal was of the view that such problems with the letter suggested it was written to provide support for the Applicant’s protection visa application and found that its concerns with the Applicant’s own evidence outweighed any support that the letter gave to his claims. 

20. On the basis of these findings the Tribunal did not accept the Applicant’s claims about his wife paying a Muslim a particular sum of money “trusting that a transfer of land would be registered”, or his claims that after he returned to Bangladesh he tried “continuously to take possession of this land”, or his various claims that he was kicked in the back in August 2009, his home attacked and he and his family beaten on 10 March 2011, and/or his home and family attacked or threatened on 11 March 2011.

21. The Tribunal did accept that the Applicant’s daughter was seen by a doctor in Bangladesh on 10 March 2011 because she had suffered an injury to her forehead, consistent with the medical certificate and photograph the Applicant had produced.  However, it did not accept that the daughter had suffered this injury in the manner claimed by the Applicant.  Nor did it accept that if the Applicant’s wife and children had been in danger he would have left them in Dhaka as he claimed. 

22. The Tribunal did not accept that there was a real chance the Applicant would be killed or attacked as a result of the claimed land dispute if he returned to Bangladesh now or in the reasonably foreseeable future. 

23. The Tribunal also considered the complementary protection provisions in the Migration Act. It did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Bangladesh there was a real risk that he would suffer significant harm as a result of the claimed land dispute.

24. The Tribunal addressed a new claim raised by the Applicant at the hearing that, because he had been in Australia for nearly two years, “they would think maybe he had got lots of money” and “he would be attacked for this reason” and his children kidnapped.  The Tribunal noted that the Applicant had worked as a welder in Singapore for a number of years and did not claim that he was attacked or threatened or his children kidnapped because he was believed to have been earning money in Singapore.  Having regard to the view the Tribunal had formed of the Applicant’s credibility, it did not accept on the evidence before it there was a real chance the Applicant would be attacked or threatened or his children kidnapped because people would know he had been in Australia, or that there were substantial grounds for believing that as a necessary and foreseeable consequence of his removal there was a real risk he would suffer significant harm because people would know he had been in Australia.

25. The Tribunal then considered the Applicant’s claims based on his religion as a Hindu.  As it had indicated in the hearing, it accepted that there were problems involving violence directed against religious minority communities in Bangladesh.  However it went on to refer to aspects of independent country information it had put to the Applicant, including evidence that the number of attacks against the Hindu community had “dropped significantly” and that Hindus comprised around nine per cent of the population of Bangladesh.  It had regard to the Applicant’s claim that “Hindus were always discriminated against and physically attacked” and Hindu temples “constantly attacked”.  However having regard to all the evidence before it, including evidence the Applicant had produced, the Tribunal did not accept there was a real chance the Applicant would be prevented from practising his religion as a Hindu.  Nor did it accept he would be attacked or discriminated against in such a way or to such an extent as to amount to persecution for reason of his religion as a Hindu if he returned to Bangladesh now or in the reasonably foreseeable future.  Nor, in terms of the complementary provisions, was it satisfied there were substantial grounds for believing there was a real risk the Applicant would suffer significant harm because of his religion as a Hindu. 

26. The Tribunal repeated and summarised its conclusions, including in relation to complementary protection.  It addressed the meaning of “significant harm” before concluding that, on the evidence before it, it was not satisfied that the Applicant was a person to whom Australia had protection obligations.  The Tribunal affirmed the delegate’s decision. 

27. The Applicant sought review by Application filed in this Court on 8 August 2012.  He filed an Amended Application on 23 November 2012.  In the hearing today he confirmed that he wished to rely on the grounds in the Amended Application.  He filed written submissions in relation to such grounds on 4 April 2013. 

28. The first ground in the Amended Application is that the Tribunal “failed to assess [the Applicant’s] persecution on the basis of [his] religious identity as a Hindu in Bangladesh”.  In particular, issue was taken with the fact that the Tribunal accepted that there were problems involving violence directed against religious minority communities in Bangladesh, but found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant’s removal to Bangladesh there was a real risk he would suffer significant harm because of his religion as a Hindu.

29. The Applicant claimed the Tribunal ignored the reality of the chance of his persecution in Bangladesh as a Hindu and ignored reports indicating Hindus suffered persecution from the majority Muslims.  In oral submissions the Applicant appeared to claim that the Tribunal had said at various times that Hindus were subject to persecution.  However, as the Amended Application recorded, what the Tribunal stated in its findings and reasons was that it accepted that there were problems involving violence directed against religious minority communities in Bangladesh. 

30. In any event the Tribunal clearly assessed the Applicant’s claim to fear persecution as a Hindu in Bangladesh.  It found that there was not a real chance that the Applicant would be prevented from practising his religion as a Hindu or that he would be attacked or discriminated against in such a way or to such an extent as amounted to persecution for reasons of his religion as a Hindu.  It also considered but did not accept his claim that he was at a real risk of significant harm on the basis of his religion. 

31. In reaching these conclusions, while the Tribunal acknowledged there were problems involving violence directed against religious minority communities, it had regard to independent country information, including a recent report that the number of attacks had dropped significantly, and it gave weight to the extent and involvement of the Hindu community in Bangladesh.  The selection and weight to be given to items of independent information is a matter for the Tribunal. 

32. Having regard to all the evidence, the Tribunal’s finding, that the Applicant did not face a real chance of harm and was not at risk of significant harm on the basis of his religion was open to it on the material before it for the reasons that it gave.  Insofar as the Applicant disagrees with the Tribunal’s conclusion in this respect, he seeks impermissible merits review. 

33. Ground one is not made out.

34. Ground two in the amended application is that the Tribunal “failed to put reasonable weight to [the Applicant’s] daughter and [his] injury following an attack from the Muslims”.  The Applicant took issue first with the Tribunal’s failure to accept his claims about how his daughter was injured and his claims about the cause of his back pain.  As indicated, the Tribunal accepted that the Applicant’s daughter was seen by a doctor on 10 March 2011 because she had suffered an injury to her forehead consistent with a medical certificate and a photograph provided by the Applicant.  I note that there is no suggestion that the medical report which appears in the Courtbook contains any explanation for such injury.

1. Having regard to its adverse credibility findings in relation to the Applicant and the evidence before it, the Tribunal did not accept that the daughter suffered the injury in the circumstances indicated by the Applicant, that is, as a result of an attack by Muslims.  Such findings were open to the Tribunal on the material before it for the reasons which it gave. 

2. In addition, the Tribunal accepted that the Applicant suffered from back pain based on the medical evidence that he had provided.  However having regard to the fact he made no mention prior to the Tribunal hearing of a supposed incident in August 2009 in which he claimed he suffered back pain by being kicked in the back, it did not accept the incident occurred as he had said, or that it was the cause of his back pain.

3. The Tribunal was not required to accept the Applicant’s claims at face value.  The issue of weight was a matter for it as a part of its fact-finding function and, as indicated, its general conclusion that the Applicant was not a witness of truth and its rejection of his credibility were findings of fact by the Tribunal that were open to it on the material before it.

4. In addition, while not directly referable to the ground as pleaded in the amended application, in the particulars the Applicant raised additional issues.  He claimed that the Tribunal did not accept his claims about his injury and back pain because when he lodged his application he did not mention an attack occurring on 10 March 2010.  Insofar as the particulars refer to 10 March 2010, in fact, the Tribunal’s findings in relation to the Applicant’s back pain referred to his claim at the hearing that he suffered the injury in an incident in August 2009.  The Tribunal also expressed concern that while he had initially claimed he was injured in March 2011, at the hearing he claimed that on that occasion he suffered no injury.  It does not appear that the Applicant made any claim to have been injured on 10 March 2010.  Indeed, he had denied this when Mr Sarkar’s letter referring to that date was drawn to his attention by the Tribunal.  This concern does not establish jurisdictional error. 

5. In this context, the Applicant also submitted that the Tribunal did not take into account Mr Sarkar’s letter or misread or misunderstood the meaning of the letter.  I have considered this claim generally, as well as in relation to the particular issue raised in ground two.  There is no substance in such contention.

6. The Tribunal set out in some detail the content of Mr Sarkar’s letter and the concerns it had raised with the Applicant in relation to that letter, including that the letter referred to an incident “[l]ast March” when dated March 2011, and referred to the Applicant having made a protection visa application when he had not done so as at the date of the letter.  The Tribunal had regard to this letter.  It has not been established that it misread or misunderstood it, let alone that the manner in which the Tribunal considered the letter revealed jurisdictional error.  The weight to be given to this letter, as with other items of information provided by the Applicant, was a matter for the Tribunal.  Its findings that the letter did not outweigh the problems the Tribunal had with the Applicant’s own evidence were open to it on the material before it for the reasons that it gave.

7. The Applicant also took issue with what was said to be the Tribunal’s failure to understand that he had put “little evidence or statement” in his protection visa application because of his poor English.  However there is nothing in the evidence before the Court to support any contention that the Applicant made such a claim to the Tribunal at the hearing or at any other time, either generally or in response to the Tribunal’s concern about his failure to previously mention the claimed 2009 attack.  Rather, when these issues were raised, the Applicant elaborated on his claims about what had occurred in Bangladesh.  In these circumstances, the complaint that the Applicant now raises and the explanation that he now provides for what was in his protection visa application is not such as to establish jurisdictional error on the part of the Tribunal on the material before it at the time of its decision. 

8. Ground two is not made out.  Insofar as the Applicant submitted generally in this and in the first ground that he was denied natural justice on any of the bases contended for, that has not been established.  The Applicant’s disagreement with the Tribunal’s findings seeks impermissible merits review. 

9. I note that in the course of oral submissions the Applicant suggested that the Tribunal, or some other entity, could make inquiries through the Australian High Commission in Bangladesh about events in his village and find out the truth.  However it is for an Applicant to put material before the Tribunal in support of his case.  There is no general ability to make inquiries.  There is nothing in the material before the Court to suggest that the Applicant asked the Tribunal to make specific inquiries or that this is a matter in which there is a critical fact the existence of which is easily ascertained, such that the Tribunal’s failure to make inquiries might be seen as giving rise to a jurisdictional error in the sense considered in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. The fact that the Applicant raises this possibility at this stage does not establish that the Tribunal fell into jurisdictional error.

10. The third ground in the Amended Application is that the Tribunal “failed to give reasonable weight to the report dated 26 July 2011 from a Counsellor at STARTTS”.  The particulars suggest that this report indicated that the Applicant was “mentally depressed and memory lost”.  Issue was taken with the fact that the Tribunal found that the Applicant was able to participate effectively in the Tribunal hearing. 

11. First, the report from STARTTS did not state in terms that the Applicant was “mentally depressed and memory lost”.  Rather it stated that he reported “a range of severe signs and symptoms associated with posttraumatic stress, depression and anxiety” including “poor memory and concentration”.  Moreover, the Tribunal took into account the letter from STARTTS in the context of considering the Applicant’s ability to participate effectively in the hearing.  It did so notwithstanding that the counsellor did not express any opinion about the Applicant’s capacity to participate in a hearing.  It also had regard to the Applicant’s claims about his state of mind in relation to the circumstances at the time of the Departmental interview.  It was open to the Tribunal to give weight to its own observations of the Applicant at the Tribunal hearing in concluding that, having taken into account the STARTTS letter, he was able to participate effectively in the Tribunal hearing.  Insofar as ground three is a complaint about the weight given to the STARTTS report, the weight to be given to such evidence is a factual matter for the Tribunal and no jurisdictional error is established on that basis.

12. Insofar as the Applicant’s contention is that he was in fact not able to participate effectively in the Tribunal hearing, such claim is not made out on the evidence before the Court.  The Tribunal hearing was conducted some time after the STARTTS assessment, which did not address the Applicant’s capacity to participate in a hearing.  There was no evidence before the Tribunal other than the STARTTS report and the Applicant’s behaviour in the hearing.  More particularly, there is no evidence before this Court such as to establish that the Applicant was, at the time of the Tribunal hearing, incapacitated, whether mentally or physically, in a way that meant that the Tribunal hearing invitation was not a real and meaningful invitation (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at 37). There is no evidence to support any finding that the Applicant was prevented from giving evidence and presenting arguments under s.425 of the Migration Act 1958 (Cth) by any medical condition (see Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41 and SZMSF v Minister for Immigration and Citizenship [2010] FCA 585).

13. Ground three is not made out. 

14. As no jurisdictional error has been established on any of the bases contended for in the Amended Application or raised by the Applicant in written or oral submissions, the Application must be dismissed. 

15. Before I make the orders, I will hear submissions in relation to costs. 

RECORDED  :  NOT TRANSCRIBED

1. The Applicant has been unsuccessful in these proceedings and the Minister seeks costs in the sum of $4,800.  The Applicant indicated that he was poor and had no money.  However, the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  23 April 2013