SZSHF v Minister for Immigration

[2013] FCCA 155

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSHF v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 155

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered the applicant’s complementary protection claims according to law – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8

Cases Cited:
SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2) (2004) 144 FCR)
Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs 2003 (75A  of B630 at 641)

Applicant: SZSHF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2756 of 2012

Judgment of: Judge Emmett

Hearing date: 11 April 2013

Date of Last Submission: 11 April 2013

Delivered at: Sydney

Delivered on: 2 May 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Counsel for the Respondents: Ms Tronson

Solicitors for the Respondents: Ms Katherine Hooper (DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2756 of 2012

SZSHF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 26 October 2012 and handed down on 29 October 2012 (“the Tribunal”).

2. The applicant claims to be a citizen of Bangladesh and a supporter of the Jatiyatabadi Jubodal, a political party associated with the Bangladesh Nationalist Party.

3. Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims and the decision of the delegate of the first respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

1. On 7 November 2010, the applicant arrived in Australia having departed legally from Bangladesh on a passport issued in his own name and a Sponsored Family Visitor visa (subclass 679).

2. On 6 December 2010, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

3. On 16 November 2011, the Delegate refused the applicant’s application for a protection visa.

4. On 28 November 2011, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 29 October 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 26 November 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:

   “1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.

   2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).

   3. Section 36(2)(a) of the Act provides that:

   (2)  A criterion for a protection visa is that the Applicant for the visa is:

   (a)   a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

   5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   6. Section 36(2)(aa) of the Act provides that:

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

   7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

   8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:

   424A  Information and invitation given in writing by Tribunal

   (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.

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.

   10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The applicant’s application for a protection visa

1. The applicant provided a statutory declaration in support of his protection visa application in which he stated:

   a)The applicant was born in Munshigonj, Bangladesh.

   b)The applicant is a supporter of the Bangladesh Jatiatabadi Jubodal which is an associated part of the Bangladesh Nationalist Party (BNP). His father, uncles and cousins are involved in politics with BNP. As a result they are “always in the eye of” the Bangladesh Awami Leauge and its associated parties.

   c)At different times, the applicant, his father and other family members have been beaten, harassed and have faced a threat of being killed. In 1998, local Awami League activists tried to burn the applicant’s house.

   d)The applicant became more involved in BNP politics in 2003. When he left college, he did not attain his degree due to problems with Awami Jabo League (an associated group of the Bangladesh Awami League).

   e)In 2006, the applicant took over his father’s rice wholesale shop. The applicant had a customer who built up a considerable debt and refused to pay. The applicant reported this to the police. The police made a diary entry but they did not take his name, .

   f)On 15 June 2008, the applicant’s father was approached by an Awami League support group and was asked for some money. His father refused and he was beaten and stabbed with a knife.  The applicant and his father reported the incident to the police and  another diary entry was made at the station.

   g)On 11 November 2008, the applicant’s family was victimised by a local Union Parishad chairman. The applicant’s father was seriously beaten and a false claim in the Court of Additional Magistrate in the Munchigonj district was filed against the applicant’s father, and other relatives.

   h)On 31 December 2009, the applicant was assaulted and beaten by the Kala Group. He tried to report the matter to the local police, however, they refused to file the case.

   i)On 5 May 2009, the applicant’s cousin accumulated a large debt to the applicant’s rice business. The applicant pressured him to pay the debt and his cousin threatened to kill him. His cousin is an Awami League activist. The applicant reported the incident to police and a general diary entry was made again.

   j)On 17 September 2009, the applicant’s shop was broken into by members of the Kala Group. A large amount of cash was stolen. The applicant complained to the police, however, they did not take his complaint seriously, and made another general diary entry.

The Delegate’s decision

1. On 9 November 2011, the applicant attended an interview with the Delegate. The applicant was represented by a solicitor at the interview.

2. On 16 November 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate largely accepted the applicant’s claims but found that he could relocate in Bangladesh.

The Tribunal’s review and decision

1. On 28 November 2011, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 28 March 2012, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 12 June 2012 to give oral evidence and present arguments. The applicant requested that the hearing be re-scheduled on a number of occasions due to a medical condition. The hearing was ultimately scheduled for 4 October 2012.  

3. On 8 June 2012, 3 and 15 October 2012, the applicant provided the Tribunal a number of documents in support of his application.

4. On 4 October 2012, the applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The Tribunal was not satisfied as to the credibility of the applicant’s account of his past experiences in Bangladesh.

7. At the hearing, the Tribunal raised a number of concerns that it had with the credibility of the applicant’s claims of political activism in support of the Jubodal or the BNP.

8. The Tribunal found that when invited to explain the policies of the BNP, the applicant’s responses were not reflective of the level of knowledge of a person who had been an active and committed member.

9. The Tribunal noted the applicant failed to provide any substantiation for his claim that he had been promised the position of President of the Ward of the BNP and that it was difficult to understand how the applicant could plausibly be elevated to the position given the low level of his claimed involvement in the party.

10. The Tribunal accepted that independent country information indicated that political violence occurs in Bangladesh and is directed at political leaders or activists. However, the Tribunal was not satisfied that the applicant could plausibly have been a target for the forms of serious harm the applicant claimed, having regard to the applicant’s low level of involvement.

11. The Tribunal took into account the supporting documents provided by the applicant. The Tribunal found a number of peculiarities and inconsistencies in the documentation. Having considered the applicant’s explanations, the Tribunal was not satisfied that any weight could be placed in the documents as evidence of the applicant’s political activism in Bangladesh.

12. The Tribunal found the applicant’s conduct in beginning and continuing his involvement with the Australian branch of the BNP, some sixteen months after his arrival in Australia, was engaged in for the purpose of strengthening his claim to be a refugee.

13. The Tribunal had further concerns about the credibility of the applicant’s claims to have suffered harm from a number of criminal groups. The Tribunal found the applicant’s evidence to be inconsistent and unreliable, and his explanations not to be credible.

14. The Tribunal did not accept that the applicant has a well founded fear of persecution if he was to return to Bangladesh for any Convention reason.

15. In relation to complementary protection, the Tribunal was not satisfied “that the information before the Tribunal provides any basis for finding there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there would be a real risk that the Applicant would suffer significant harm in terms of s.36(2)(aa) of the Act ”.

16. The Tribunal concluded that the applicant did not satisfy the criterion for being a refugee as set out in s.36(2)(a) of the Act and was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa) of the Act.

17. Accordingly the Tribunal affirmed the decision not to grant the applicant a Protection (ClassXA) visa.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Bangladeshi interpreter. 

2. On 7 March 2013, the applicant attended a directions hearing before a Registrar of this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

4. On 2 April 2013, the applicant filed an Amended Application and a document entitled “Applicant’s Outline of Submissions”.

5. The applicant confirmed that he relied on the ground contained in the Amended Application, filed on 2 April 2013. That ground is as follows:

   “The decision of the second respondent was affected by jurisdictional error in that:

   1. The second respondent (the Tribunal) failed to exercise its jurisdiction in that the Tribunal did not consider an integer of the applicant’s claims for complementary protection.

   Particulars

   a. The applicants agent at CB188,[88] submitted that certain reports and press releases established that the security and political situation in Bangladesh remained volatile and dangerous, that human rights violations continued despite government promises to curb  it, that opposition political party members including people who worked in the grass root level faced harassment from the Bangladeshi authorities and that there was impunity for human rights abusers in Bangladesh.

   b. The applicant’s agent at CB 410,[42] also submitted that there was significant evidence that state authorities either engaged in or condoned human rights abuses targeting opposition members, in particular against BNP members.

   c. At CB440 [99] the Tribunal accepted that, while the applicant did not have a political profile as an activist or leader for the Jatiabad Jubodal or the BNP such that he would have been harmed for that reason, or that he was a target for serious harm, the applicant joined, or at least supported the Jatiabad Jubodal and that he performed some low level administrative tasks, under direction, for that organisation ad that he might have contributed money when asked to do so.

   d. Because the Tribunal accepted that applicant had an involvement in the BNP related opposition group Jatiaban Jubodal, the applicants claims in relation to his involvement, at least to the extent accepted by the Tribunal, survived the Tribunal’s other adverse credibility findings. 

   e. The Tribunal limited its consideration of the applicant’s claims in relation to his involvement with the Jatiabad Jubodal to “serious Harm” under s 91R Migration Act (See CB 418 [10] , and did not consider whether the same claims might amount to “significant harm” in terms of s. 36(2A) of the Act. Instead the Tribunal seems to have treated its findings on “serious harm” under s 91R at [99] as applying to “significant harm” under 36 (2A), as if the two concepts were the same, which they are not. ”

   f. Therefore the Tribunal limited its consideration of and findings in relation to complementary protection to the matters set out in CB 444 [113], that is the applicant’s difficulty in business, his fathers experiences as a victim of hijacking, and the applicant’s work injury.”

6. Ground 1 and its particulars were interpreted for the assistance of the applicant and the applicant was invited to make submissions in support and in support of his application generally.

7. I understand the ground of the Amended Application to contend that the Tribunal failed to consider if the applicant suffered significant harm for the purposes of complementary protection in s.36.2(aa) of the Act. The contention appears to be that the Tribunal treated its findings on serious harm, in its consideration of s.91R of the Act, as applying to significant harm in considering the applicant’s complementary claim that he was at real risk of suffering significant harm if he was to return to Bangladesh.

8. The applicant’s written submissions essentially repeated the grounds of the Amended Application. Essentially, the written submissions contended that the Tribunal did not consider if the applicant’s involvement in the Jatiatabadi Jubodal amounted to “significant harm” for the purposes of s.36.2(aa). The applicant submitted that the Tribunal confined its consideration of complementary protection under s.36(2)(aa) of the Act to “serious harm”, whereas s.36(2)(aa) s.36(2A) of the Act required consideration of “significant harm”. The applicant submitted that the Tribunal treated serious harm and significant harm “as if the two concepts were the same, which are not”. The written submissions also stated that the Tribunal limited its consideration of and findings in relation to complementary protection to the applicant’s difficulties in business, his father’s experience of hijacking and his work injury.

9. Relevantly, s.36(2)(aa) of the Act provides as follows:

   “s.36(2)(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm(emphasis added);”.

1. Section 36(2A) provides as follows:

   “s.36(2A)  A non-citizen will suffer significant harm if:

   (a)  the non-citizen will be arbitrarily deprived of his or her life; or

   (b)  the death penalty will be carried out on the non-citizen; or

   (c)  the non-citizen will be subjected to torture; or

   (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)  the non-citizen will be subjected to degrading treatment or punishment.”

2. The only submission made by the applicant’s advisor to the Tribunal in relation to complementary protection was as follows:

   “Recent incidents show that it is not only higher level or local level BNP leaders or activists who are harmed. The Applicant would face a real risk of harm, satisfying the criteria under the Convention and under complementary protection arrangements”

   I accept the written submission of counsel for the Respondent, Ms Tronson, that this submission demonstrates that the applicant’s characterisation of his complementary protection claim was on the same footing as his characterisation of his primary claims.

3. A fair reading of the Tribunal’s decision record does not suggest that the applicant squarely raised any other claims or made any other submissions about his entitlement to complementary protection. (See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR).

4. Having found that the applicant had some low level involvement in the Jatiatabadi Jubodal, the Tribunal was required to consider whether the applicant would face a real risk of significant harm on that basis in considering the issue of complementary protection.  In relation to that consideration, the Tribunal was not satisfied that the applicant ever had a political profile as an activist or a leader for the Jatiatabadi Jubodal or the BNP in his area or more widely in Bangladesh, such that he would have been harmed for this reason.

5. As stated above, the Tribunal accepted that the applicant performed “some low-level administrative tasks under direction” for the Jatiatabadi Jubadal and that he may have contributed money when asked to do so. As stated above, the Tribunal was not satisfied that the applicant’s level of involvement was such that he would have been seen as a party activist by others in the Jatiatabadi Jubadal or by those affiliated with the Awami league. The Tribunal accepted independent country information before it which indicated that incidents of political violence in Bangladesh are overwhelmingly directed at political leaders or activists, or otherwise occur in more generalised violence.

6. The Tribunal rejected the applicant’s account of his experiences in Bangladesh. As stated above, the Tribunal found that whilst it accepted some low level involvement by the applicant in the Jatiatabadi Jubodal, such level of involvement could not plausibly have made the applicant a target for the forms of “serious harm” that he claims.

7. Further, the Tribunal was not satisfied as to the credibility of the applicant’s claims to have been targeted by the four groups he mentioned, or that the four groups in fact exist in Bangladesh. The Tribunal was also not satisfied that the applicant or members of his family have suffered threats, extortion, the loss of business, false cases, or actual physical harm at the hands of the groups claimed for any Convention reason.

8. The Tribunal was not satisfied that there is a real chance that the applicant would suffer harm in the future in Bangladesh because of his political opinion or because of membership of a particular social group consisting of business men having opposition, political affiliation or are members  of a family unit who are supporters of the BNP. The Tribunal noted that the applicant did not claim to fear harm in Bangladesh for any other reason and that no other reason was apparent on the face of the information before the Tribunal.

9. I accept the submissions of counsel for the first respondent that, in concluding that the applicant would not face serious harm in Bangladesh for the reasons given, the Tribunal disposed of the applicant’s claims in relation to his fear of harm on the basis of his involvement in the BNP generally. Such a finding is one of greater generality which subsumes any claim that the applicant may fear significant harm for the reason of his involvement with the Jatiatabadi Jubodal, being an associated part of the BNP (See Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs 2003 (75A  of B630 at 641)).

10. In the circumstances, the Tribunal considered the applicant’s claim to be entitled to complementary protection on the basis of his level of involvement in the Jatiatabadi Jubodal, according to law.

11. As stated above, the Tribunal’s conclusion that the applicant would not face serious harm in Bangladesh as claimed was sufficient to cover the Tribunal’s obligation to consider whether the applicant was at risk of significant harm if he was to return to Bangladesh. Having rejected that the applicant could plausibly have been a target for the forms of serious harms that he claimed, there was nothing before the Tribunal that obliged it to consider further the particular of “significant harm” identified in s.36(2A) of the Act.

12. Accordingly the Grounds in the Amended Application are not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant in some great detail at the hearing; and, had regard to all material provided in support. The Tribunal summarised the various exchanges it had with the applicant about his claims. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Date:  2 May 2013