SZSOV v Minister for Immigration

[2013] FCCA 949

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSOV v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 949

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – neither of the grounds of the application are made out – application dismissed.

Legislation:  
Migration Act 1958 (Cth), ss.36, 441G, 476

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
SZRNX v Minister for Immigration & Anor [2012] FMCA 1242
SZRMF & Anor v Minister for Immigration & Anor [2013] FMCA 180

Applicant: SZSOV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 259 of 2013

Judgment of: Judge Nicholls

Hearing date: 22 July 2013

Date of Last Submission: 22 July 2013

Delivered at: Sydney

Delivered on: 22 July 2013

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Mr R White

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 12 February 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,400.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 259 of 2013

SZSOV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), made on 12 February 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 18 January 2013, to affirm the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of Bangladesh (Court Book – “CB” – CB 7). He arrived in Australia on 22 December 2011 (CB 14) and applied for a protection visa on 19 March 2012 (CB 1 to CB 49, including attachments). He was assisted in that application by a lawyer, who was also a registered migration agent (CB 1 and CB 9). 

2. The applicant’s claims to protection were set out, it must be said briefly, in his protection visa application (CB 18 to CB 19).

3. Those claims can be summarised as follows (CB 18 to CB 19):

   1)The applicant is from a family of supporters of the Bangladesh Nationalist Party (“BNP”). The applicant attended local BNP meetings, read material on the BNP and eventually engaged in campaigning for the BNP (CB 18.5).

   2)Because of the applicant’s family’s good connections with the BNP leaders and activists the applicant and his family were threatened by “opposing” members of Parliament to cease supporting the BNP (CB 18.7). The applicant believed he would be targeted and seriously harmed by the Awami League, who were in opposition to the BNP (CB 19.1).

   3)The applicant claimed that the Bangladeshi authorities would not protect him as the Awami League is “the ruling party in Bangladesh” (CB 19.2).

The Delegate

1. The applicant’s representative provided substantial, and lengthy, written submissions in support of the applicant’s claims on 21 May 2012, (CB 53 to CB 162)

2. The Minister’s delegate decided to refuse the grant of the protection visa to the applicant (CB 163 to CB 182). The delegate found that the applicant was not, and had not been, an active member of the BNP (CB 174.9). Nor did he leave Bangladesh because of threats from the Awami League (CB 174.9). In light of that, the delegate was not satisfied that the Awami League, nor its members, had any adverse interest in the applicant for any reason (CB 175.1). 

3. Having rejected the applicant’s factual claims to fear harm, the delegate then proceeded to find that he was not satisfied that the applicant satisfied either s.36(2)(a) or (aa) of the Act for the grant of a protection visa (CB 181).

The Tribunal

1. On 26 June 2012, with the continued assistance of his lawyers, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 183 to CB 213). 

2. The applicant was invited to attend a hearing before the Tribunal (CB 218 to CB 219). I note that both the applicant and a representative of the firm that was acting for the applicant attended at that hearing (CB 227 to CB 229).

3. The Tribunal made its decision on 21 January 2013. It notified the applicant of its decision by sending it, appropriately (s.441G of the Act), to his representative (CB 271 to CB 287). The Tribunal accepted, although as it said “not without some doubt”, that the applicant and his family members were BNP supporters ([53] at CB 284). Further, it accepted that the applicant was involved in BNP activities in Bangladesh when he lived there ([53] at CB 284).

4. However, the Tribunal did not accept that the applicant was, or would be, targeted by the Awami League or its supporters because of any BNP membership and activities ([53] at CB 284). In particular, the Tribunal did not accept that the applicant left Bangladesh for the reasons that he claimed ([55] at CB 284 to [58] at CB 285). Nor, in light of the applicant having attended only one meeting of the BNP in Australia, did the Tribunal accept that he was a passionate supporter of the party or that he continued to be in contact with members of the BNP in Bangladesh ([59] at CB 285 to CB 286).

5. While the Tribunal accepted that the applicant’s family had “some problems and disputes” ([60] at CB 286), it did not accept that the “applicant’s family were suffering serious problems in Bangladesh” ([60] at CB 286).

6. It is important to note that the Tribunal, apart from those factual matters to which I have referred already, in essence rejected the applicant’s core factual claims to fear harm in Bangladesh.

7. The Tribunal variously noted, then found, and based its rejection of the applicant’s factual claims on, inconsistencies between the applicant’s oral evidence and his written claims. For example, the applicant claimed in writing that he went to Palau from Bangladesh where he stayed for some years for work reasons, but before the Tribunal he claimed that he was fleeing harm from the Awami League (see [32] at CB 279).

8. Similarly, the Tribunal noted that the applicant said that he had feared harm and had been targeted in 2004, but he continued to live at the family home where he had always lived with his family and continued his activities until he left to go to Palau in 2006. Similarly, the timing and reasons for the applicant applying and obtaining his Bangladeshi passport were of note and concern to the Tribunal in this regard.

9. I should also note that, before the Tribunal, the applicant advanced another claim, that, as he had been living in a western country, he would be “perceived to be rich” and would face harm for that reason if he were to return to Bangladesh ([61] at CB 286). While the Tribunal accepted that there was “general country information” to support such a claim, it found that the applicant had “invented” the claim for the purpose of “giv[ing] him a better chance to get a visa to stay in Australia…” ([61] at CB 286).

10. The Tribunal’s conclusions are essentially set out at [63] (at CB 286) to [65] (at CB 287) of its decision record:

    “[63] In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered persecution in Bangladesh, or that he has a real chance of suffering persecution there, from political opponents, Awami League members/supporters or from anyone else, because of his political opinion or imputed political opinion, because he is a member of a particular social group, or for any other Convention reason, either now or in the reasonably foreseeable future, if he returns to Bangladesh.

    [64] Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant had a well-founded fear of persecution in Bangladesh within the meaning of the Convention.

    [65] Further in the Tribunal’s view there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in the applicant’s case, Bangladesh, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) (‘the complementary protection criterion’).”

The Application to the Court

1. The grounds of the application to the Court are as follows:

   “1. The Tribunal has misapplied the law

   Particulars.

   a. The Tribunal has failed to give meaningful consideration to my specific claims against the Complimentary (sic) Protection provisions contained in Section 36(2)(aa) of the Migration Act.

   2. The Tribunal failed to provide reasons why I will not face a real risk of harm under Section 36 (2) (aa) of the Migration Act.”

2. When the matter first came before this Court, on 10 April 2013, the applicant appeared in person. He stated from the bar table that the application to the Court had been drafted by a “lawyer”. That was subsequently explained to be the lawyer who had assisted him, and represented him, before the Department and the Tribunal.

3. At that time the applicant indicated that he wished to participate in the Court’s “RRT Legal Advice Scheme”. I urged the applicant to attend, and listen carefully, to the lawyer on the panel assigned to provide advice to him. 

4. Orders were also made at the time affording the applicant an opportunity to file an amended application and any further evidence in support. Nothing has been filed by the applicant since that time. I note that there is a certificate on the Court’s file from a lawyer on the panel certifying that written advice was provided to the applicant.

5. Today, the applicant appeared in person and was assisted by an interpreter in the Bengali language. Mr R White appeared for the Minister. 

6. The applicant’s oral submissions to the Court, if they can be described as such, were that he had submitted everything that he was able to submit to the Court. He confirmed that he had spoken to the panel lawyer. Further, he stated that he had no further papers to put before the Court because the situation in Bangladesh was “very bad”. The applicant complained that before the Department and the Tribunal he was not “trusted”. He requested a sympathetic review of his case by the Court.

7. As I tried to explain to the applicant on a number of occasions, this Court has no power to intervene and conduct a review of the merits of his claims to protection. The applicant said nothing to advance his case before the Court. He was really seeking impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). 

8. If there were further documents that the applicant wanted to put to support his claims to protection then the time for that was, ultimately, before the Tribunal. In that regard, I note that the applicant was represented before the Tribunal, and that comprehensive written submissions, with many references to a variety of sources, were made on his behalf by his representative. Therefore, the applicant did submit documents to the Tribunal.

9. The fact that the Tribunal found that the documents produced by him were not reliable evidence of the facts in them, is not a denial of any opportunity for the applicant to advance his case. It is simply a finding of fact made by the Tribunal which was reasonably open to it to make on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)). I am satisfied that otherwise the applicant had a reasonable opportunity to present his case and present documents before the Tribunal.

10. The applicant also expressed some doubt before the Court today as to the reason he was unsuccessful before the Tribunal. The short answer to the applicant’s question is, because the Tribunal did not believe his claims. Further, based on what is before the Court, the Tribunal’s finding of adverse credibility is a finding of fact for which the Tribunal had a probative basis, and which was reasonably open to the Tribunal on what was before it (Durairajasingham).

11. The applicant’s complaint in both grounds of the application to the Court is directed to the Tribunal’s approach to s.36(2)(aa) of the Act. The assertion is that the Tribunal failed to give meaningful consideration and provide reasons as to why the applicant would not face a real risk of harm under s.36(2)(aa) of the Act if he returned to Bangladesh.

12. As was made clear by the High Court in a number of cases, Tribunal decision records are “...not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Wu Shang Liang at [30] and the reference there to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280). That is, Tribunal decision records are meant to be read fairly. In the current case, it must be said that, even on a plain reading, the Tribunal’s decision record does not reveal the errors which the applicant’s application now contends.

13. In its decision record, the Tribunal set out its understanding of the relevant tests relating to s.36(2) of the Act. That is, the matter of serious harm which relates to s.36(2)(a), and significant harm relating to s.36(2)(aa) of the Act. The Tribunal set these out in unexceptional terms in its decision record ([4] at CB 275 to [18] at CB 277) and its conclusions were directed to those criteria ([63] at CB 286 to [68] at CB 287).

14. It is important to note here the manner in which the applicant presented his claims for protection. He made a number of factual assertions some of which the Tribunal, albeit reluctantly, accepted. As I have already said, much of what the applicant put by way of factual assertion was not accepted by the Tribunal and no error is evident in that regard. 

15. What is also clear from what the applicant put to the delegate, and at his hearing with the Tribunal, is that, for the most part, the applicant’s claims were presented as claims to fear “persecution” which involved the matter of “serious” harm arising from his and his family’s claimed political involvement with the BNP. The harm that he said he feared was from political opponents, the Awami League. I note that, in that latter regard, the applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing

16. This can also be seen in the applicant’s representative’s written submission in support of the application for protection visa. The written submissions are a lengthy document of some 107 typed pages. The written submissions contain a multitude of references to various media articles and country information reports. The introductory pages, including 135 references to various internet sites, are all directed to the matter of “persecution”, not “complementary protection”. It is not until page 80 of the written submissions (see CB 132 ff) that elements of the complementary protection criterion (s.36(2)(aa) of the Act) are specifically mentioned.

17. Even here, it is important to note that, after some 10 pages where complementary protection matters and matters of persecution under the Refugees Convention are intermingled, the concluding pages of the submission are directed only to matters of persecution under the Refugees Convention (see from “political opinion” at CB 150 – page 98 of the submissions). While the submissions refer to “serious” harm in the context of the applicant’s claims, there is no specific reference to “significant” harm in that context. Importantly, the concluding paragraphs make no reference to “significant” harm.

18. At [194] of the written submissions (at CB 161), the representative lists a number of factual assertions made by the applicant. The penultimate paragraph ([195] at CB 161) is in the following terms:

    “For the reasons outlined above, we submit that the applicant’s political opinion, is essential and significant reasons for the persecution that would, were our client to return to Bangladesh, involve serious harm amounting to systematic and discriminatory conduct.”

19. Then, the last paragraph ([196] at CB 162) is:

    “We further submit in the particular circumstances of our client’s case, and in the light of the above information that the applicant should be recognised as a refugee.”

20. There is nothing here about complementary protection. 

21. The Tribunal’s analysis in its findings and reasons, not surprisingly, focused on the factual claims made by the applicant. It is important to note, and certainly on a fair reading, that the Tribunal’s analysis in expressing what it accepted, and what it rejected, of these factual claims did so with reference to how the claims were made by, and on behalf of, the applicant. 

22. In this, the Tribunal directed its analysis to what it continually referred to as “harm feared”. That was made without specific expression of any distinction between serious, or significant, harm. It was plainly inclusive of the reasons that the applicant said that he claimed to fear harm (see [52] at CB 284 to [59] at CB 285). That is, the Tribunal dealt with the applicant’s claims to fear harm at the factual level. It is not until [60] - [61] (at CB 286) that the Tribunal focused specifically on the matter of “serious” harm. 

23. The Tribunal plainly distinguished between the generalised claims of fear as made by the applicant and the requirement to assess those claims as against the concepts of “serious” and “significant” harm. It is also important to note, as the Minister submitted today, that the applicant and his representative advanced no claims specific to his own circumstances as coming within the complementary protection criterion. 

24. I agree with the Minister that the various references to torture, and other similar complementary protection concepts, that appear “late” in the written submissions, were all of a generic and general nature. Even on a fair reading of the representative’s submissions, no attempt was made to link these concepts to any specific claim made by the applicant. I agree with the Minister that the Tribunal considered all of the applicant’s claims, as those claims were expressly presented or clearly arose from what was presented. That presentation was made in the context of, and essentially against, the Refugees Convention. The Tribunal, however, also considered the claims, in the general sense, in which they could be said to have arisen under the complementary protection criteria. 

25. The Tribunal’s factual findings were all reasonably open to it. As I said, it gave cogent reasons probative of what was before it.  No legal error is revealed in these circumstances. 

26. While it may be said that the Tribunal’s specific, or expressed, findings on complementary protection are relatively brief, that is simply reflective of two things. First, how the claims were presented, and second, the little, if anything, of those claims that survived the Tribunal’s factual analysis. 

27. In this light, I respectfully agree with Judge Raphael, to whom the Minister refers in his written submissions (SZRNX v Minister for Immigration & Anor [2012] FMCA 1242 at [15] and SZRMF & Anor v Minister for Immigration & Anor [2013] FMCA 180 at [13] – [14]), that brevity is not, of itself, revelatory of jurisdictional error.

28. The two grounds of the application to the Court are not made out.  It is appropriate that the application to the Court be dismissed today. I will make that order accordingly.

29. It is also appropriate that an order for costs be made today. The applicant has not put anything before the Court to argue against the making of the costs order. Nor can I otherwise see that any such argument can be put in the circumstances of what has been presented to the Court. As to the amount, I have had regard to the work that has actually been done by the Minister’s solicitors in responding to the application and I am satisfied that the amount sought is a reasonable amount in all the circumstances.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 30 July 2013