SZSME (Child) By His Litigation Guardian SZNEH (Father) v Minister for Immigration
[2014] FCCA 443
•27 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSME (CHILD) BY HIS LITIGATION GUARDIAN SZNEH (FATHER) v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 443 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal failed to consider applicant’s claims – where Tribunal found applicant would not suffer serious or significant harm – whether Tribunal required to consider State protection – whether Tribunal failed to consider complementary protection – whether Tribunal failed to consider evidence provided by applicant – whether Tribunal failed to consider applicant’s difficulty in obtaining evidentiary support for claims – whether Tribunal fell into jurisdictional error. |
| Legislation: Migration Act 1958 (Cth) ss.36(2)(aa), 65 |
| SZOYZ & Ors v Minister for Immigration & Anor [2011] FMCA 201 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 |
| Applicant: | SZSME (CHILD) BY HIS LITIGATION GUARDIAN SZNEH (FATHER) |
| FirstRespondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 23 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 27 February 2014 |
| Date of Last Submission: | 27 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2014 |
REPRESENTATION
| For the Applicant: | Litigation guardian in person |
| Counsel for the Respondent: | Mr M Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.
Amended application dismissed.
Applicant’s Litigation Guardian to pay the Respondents’ costs assessed in the sum of $5,400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 23 of 2013
| SZSME (CHILD) BY HIS LITIGATION GUARDIAN SZNEH (FATHER) |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is almost three. He was born in Australia on 14 March 2011. He is a citizen of Bangladesh. His parents and his older brother are also from Bangladesh. They all made applications at various times for Protection (Class XA) visas under s.65 of the Migration Act 1958 (Cth). All those applications have been refused. This child made an application for a Protection (Class XA) visa, through his father, on 18 October 2011. On 21 May 2012 a delegate of the Minister refused to grant a protection visa. On 26 June 2012 the young man applied to the Tribunal for a review of that decision.
His father attended a hearing before the Tribunal on his behalf and put to the Tribunal his case for believing that he was a person to whom Australia owed protection obligations. On 7 December 2012 the Tribunal determined to affirm the decision not to grant him a protection visa.
This court in its migration jurisdiction frequently sees claims made by infants born in Australia of unsuccessful applicants for protection visas. The usual procedure is that the claims that are put forward are based entirely upon the unsuccessful claims of their parents. In other words, the Tribunal is required to rehear the parents’ claims that have already been dismissed, possibly some years previously. To the extent that conditions in the parents’ home country may have changed, this is a perfectly legitimate thing to do. But to the extent that they have not changed, the Tribunal is forced to rehear the matters that have long since been determined. In the instant case, although the basis of the applicant’s claim was similar to that of his father, his father updated the claim by reference to the more current situation in Bangladesh.
Essentially, the fears that were expressed were that the applicant would be left an orphan because if his father returned to Bangladesh, he would suffer at the hands of the current Awami League government because he had been a prominent supporter and activist on behalf of the Bangladesh National Party (BNP). It was also claimed that the child will be the subject of possible kidnapping and the parents the subject to possible extortion because they will be perceived in Bangladesh, should they return, as wealthy, they having spent considerable time out of the country, particularly in Australia.
The father has spent quite a lengthy time in Australia but he has also spent a lengthy time in Brunei, where he worked from 1994 to 2007. During that time, he made several return visits to Bangladesh without coming to any harm either because of his perceived wealth or because of his perceived association with the BNP. The father owns land in Bangladesh and although he has had some trouble with setting out its boundaries, he has not suffered any real harm. The Tribunal considered this:
The Tribunal does not accept that there is a real chance or a real risk that either the applicant, or the applicant’s father, will be targeted for harm amounting to serious or significant harm, because the father will be perceived as wealthy because he has two plots of land and because he (the father) has been overseas in Australia, a western, first world country. The applicant’s father worked overseas in the construction business for many years in Brunei, he owned land in Bangladesh but he was able to return to his country and stay there for up to 90 days at times without harm for many years. Although the Tribunal accepts that the security/political situation has deteriorated since the applicant’s father was last in Bangladesh and that the father bought a second plot of land just prior to coming to Australia, and although the Tribunal accepts that the perceptions about Brunei will be different from those about Australia which is a first world country, nevertheless the Tribunal considers that the chance of the applicant or the applicant’s father being harmed, including in the applicant’s case his chance of being kidnapped for extortion purposes, because the father will be perceived as wealthy because he has been in Australia, is remote only.” [56] CB129
The Tribunal questioned the applicant’s father upon his story and put to him concerns that it had with his suggestion that he was a prominent activist in the BNP and, in particular, discussed with him its concern about some purported corroborative evidence that he had produced in the form of documentation going to his membership of that political party. The Tribunal concluded that it could not accept the applicant’s father as a credible witness and, after considering the applicant’s claims for complementary protection under s.36(2)(aa), determined that he was not a person to whom Australia owed protection obligations.
On 3 January 2013 the applicant filed an application through his father as his litigation guardian in this court. On 27 August 2013 an amended application was filed seeking review of the decision of the Refugee Review Tribunal. There were five grounds of review contained in that document to which the applicant’s father spoke at the hearing in this court. The first ground of review is in the following form [as in original]:
“The tribunal failed deal with an integer of the applicants’ parents’ claim that they would be subject to extortion for a convention reason if they were to return to Bangladesh, constituting a jurisdictional error.
Particulars
A. The Applicants claimed, and or the evidence clearly raised, that they feared that:
(1) The applicant’s parent would be subject of extortion if they returned to Bangladesh.
(2) The applicant’s who just only two and half years, he is in high risk of being kidnapped if he returned to Bangladesh with his parents.
(3) The criminal activities targeted or to be targeted at the applicant’s parent were based on political reasons.
[See NABE v Minister for immigration and multicultural affairs (No.2) (2004) 114 FCR 1 at [63], and the several decisions of the federal court and dozens of decisions of the federal magistrates court which have applied it].”
There is no merit in the applicant’s contention that the Tribunal failed to consider these claims. They were dealt with in considerable detail at [[54] CB128] and [[56] to [57] CB129]. Paragraph [56] of the reasons has been extracted already in these reasons, and it will be clear from that extract that the Tribunal dealt with these matters. At [57], the Tribunal deals with the claim that the parents would be victims of criminal activity.
The second ground is:
“The Tribunal failed to consider at all the availability of state protection for the applicants.”
As this court has said in SZOYZ & Ors v Minister for Immigration & Anor [2011] FMCA 201 at [78] and as the Federal Court has confirmed SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841, there is only a necessity to consider State protection when a Tribunal has found that an applicant is likely to suffer harm of some sort. The Tribunal’s responsibilities with regard to State protection do not end there. The State protection must be withheld for a Convention reason. But none of those matters were raised with the Tribunal by this applicant’s father and this ground cannot succeed because the Tribunal made a finding that the applicant would not suffer either serious or significant harm.
The third ground of application is in the following form:
“The Tribunal then failed to determine [126] [45] that whether the applicant’s case reviewed under ‘the complementary protection criterion’. when The Tribunal itself saying “The Tribunal must determine whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant in question being removed from Australia to a receiving country, in this case Bangladesh, there is a real risk that he will suffer significant harm in that country.” So, The Tribunal made a jurisdictional error as discussed above.”
It seems to the court that this ground has come about because of a misreading by the applicant of [45]. What is clear from the court’s reading of that paragraph is that the Tribunal was merely posing a question that it had to answer in order to come to a conclusion concerning complementary protection, not making a finding, and thus there is no merit in that ground.
The fourth ground of application was:
The Tribunal’s finding at [129][55] that “Document fraud in Bangladesh”…. The tribunal said ‘it does not consider that this document is reliable evidence of the facts in it.’ Because of tribunal find some news from some source about document can made false in Bangladesh its does not mean that every document that delivered by the applicant will be false too. This fining [sic] too is accordingly infected with the error discussed above.”
This claim is also unsupportable because the court has found that the Tribunal raised clearly with the applicant its concerns about document fraud in Bangladesh. This is discussed at [55] CB128. As Mr Smith says in this helpful written submissions:
“…In any event, the weight to be given to a particular item of evidence is a matter for the Tribunal and there is no obligation on the Tribunal’s part to inform an applicant in advance that the Tribunal intends to place no weight on a particular item of evidence. (WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511.”
In this particular case the Tribunal made a finding about the applicant based upon two things: firstly, his general lack of credibility, and, secondly, the evidence concerning document fraud in Bangladesh. Under those circumstances this ground cannot succeed.
The fifth ground is in the following form;
“The Tribunal accepts that [124] [46]: applicant’s for refugee status face particular problems of proof as an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be exception rather than rule”: but the tribunal did not consider the matter. This is an error as well.”
The duty of the Tribunal is to assess the claims being made by an applicant, understanding always the difficulty that an applicant may have in providing corroborative evidence or formal proof of the claims that he or she might make. But equally, being aware of the views expressed by the High Court in Abebe v Commonwealth of Australia (1999) 197 CLR 510, that:,
“The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out.” [Gummow and Hayne JJ at [187], see also, Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389].
The court concurs with the submissions made by Mr Smith that the Tribunal simply did not accept that the applicant’s father had a political profile or that his family would be at risk of harm in the form of criminal extortion or abduction should they return to Bangladesh. That was an entirely orthodox way of dealing with the claims, and the ground which seeks to impugn it cannot be sustained.
The effect of these findings is that the amended application must be dismissed. The court orders that the applicant pay the respondents’ costs assessed in the sum of $5,400.00.
The court would also suggest that the Minister give some serious consideration to amendment of the Act so that claims made by children, which are based upon claims made by parents that have previously been dismissed, should only be admissible to the extent that they differ from the claims made by the parents for whatever reasons that might be, so that a re-hearing of the parents’ claims should not be required.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 7 March 2014
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