SZSSJ v Minister for Immigration

[2013] FCCA 654

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSJ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 654

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to rule 44(12) of the Federal Circuit CourtRules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rule 44(12)

Applicant: SZSSJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 633 of 2013

Judgment of: Judge Emmett

Hearing date: 21 June 2013

Date of Last Submission: 21 June 2013

Delivered at: Sydney

Delivered on: 21 June 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitor for the first Respondent:

Ms Katherine Hooper

(DLA Piper Australia)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 633 of 2013

SZSSJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to rule 44(12) of the Federal Circuit Court Rules 2001 (Cth), that the proceeding before this Court commenced by way of application filed on 28 March 2013 be dismissed on the basis that the application has not raised an arguable case for the relief claimed. The ground of the application is as follows:

   “There are some jurisdictional errors in RRT decision. The member did not act according to the law in assessing complementary protection criteria.” 

2. The applicant was unrepresented before this Court this morning but had the assistance of an interpreter.  The ground was interpreted for the assistance of the applicant and he was invited to say whatever he wished in support of the ground of his application.  The applicant said that he was looking for a lawyer, he had nothing to say and that he wished to have more time to prepare.  The solicitor for the first respondent, Ms Hooper, tendered a bundle of documents identified as Court Book filed on 24 April 2013 and marked ‘Exhibit 1R’. 

3. The complaint made by the applicant’s ground appears to relate solely to the manner in which the Refugee Review Tribunal (“RRT”) dealt with complementary protection.  Ms Hooper directed the Court’s attention to a submission made by the applicant’s migration agent to the RRT in support of his application for review of the delegate’s decision.  Neither the applicant nor the applicant’s migration agent appeared to make any independent submissions in relation to any claim for complementary protection by the applicant, and the applicant does not suggest otherwise.

4. In its decision record, the RRT noted that it had considered whether the applicant might meet the criterion for complementary protection and concluded based on its findings that the applicant was not at risk of significant harm if he was to return to Bangladesh. 

   “80. I have also considered whether the Applicant might meet the alternative criterion for complementary protection. I accept that if he were to return to Bangladesh he might be of some interest in his local community because of his appearance and in particular because of his hair style. It is conceivable that he might face some degree of teasing or even ridicule on this score, and that this might make his to come degree uncomfortable. I also accept that he might find Bangladesh society to be, generally, more conservative than the social settings to which he been accustomed in Sydney in recent years, and that he might well find this restrictive and uncongenial. However, I am not satisfied on the information before the Tribunal that these factors could reasonably be seen as amounting to significant harm in his particular circumstances. Nor am I satisfied that he is at risk of significant harm from the other sources he has identified – fundamentalist Muslims, including Imams; the authorities, his immediate and extended family and their associates; or members of political parties.

   81. I am 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.

5. The applicant has not identified any other error on the face of the RRT’s decision record, and none is apparent to this Court.  The applicant’s claims were Convention based and ultimately not accepted by the RRT, who affirmed the decision under review. 

6. A fair reading of the RRT’s decision record makes clear that the RRT had regard to the applicant’s written claims, his departmental interview, his claims at hearing and a post hearing submission by the applicant’s migration agent. The RRT explored the applicant’s claims at the hearing and put to him concerns it had about his evidence and noted the applicant’s responses. The RRT also had regard to country information provided by the applicant’s migration agent and other country information that it sourced in considering the applicant’s claims. The RRT then considered the applicant’s claims to fear harm because of his religion, his political opinion and because of his membership of a particular social group. In particular the RRT had regard to the applicant’s explanation for his seven year delay in seeking protection after he arrived in Australia. The RRT found that the applicant’s delay was not consistent with a claim of a genuine fear of serious harm if he returned to Bangladesh. Nevertheless, the RRT gave the applicant the benefit of the doubt by accepting that he may have some fear upon return but was not satisfied that this could be so strong as to constitute psychological harm amounting to a fear of persecution.

7. Ultimately, the RRT was not satisfied that the applicant faced a real chance of serious harm amounting to persecution in Bangladesh because of his religion, real or imputed political opinion or membership of a particular social group. Therefore, the RRT concluded that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

8. A fair reading of the RRT’s decision suggests that its findings and conclusions were open to it on the evidence before it and for the reasons given.

9. In the circumstances, the applicant has not raised an arguable case for the relief claimed.

10. Accordingly, the applicant’s proceeding before this Court commenced by way of application filed on 28 March 2013 should be dismissed with costs. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  21 June 2013