SZTSY v Minister for Immigration

[2015] FCCA 229

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 229

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether Tribunal failed to take into account a relevant consideration – whether Tribunal correctly applied s.36(2) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 91R, 425, 476

MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
Singh v Minister for Immigration and Border Protection [2014] FCA 563
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234
WZANN v Minister for Immigration & Another [2009] FMCA 643
Minister for Immigration and Border Protection v  MZYTS [2013] FCAFC 114
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE  v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Giraldo v Minister for Immigration & Multicultural Affairs [2001] FCA 113
Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225
Applicant S v Minister for Immigration [2004] HCA 25; (2003) 217 CLR 387
SZSGA  v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125

Applicant: SZTSY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 15 of 2014

Judgment of: Judge Nicholls

Hearing date: 29 August 2014

Date of Last Submission: 22 September 2014

Delivered at: Sydney

Delivered on: 6 February 2015

REPRESENTATION

Applicant: In Person

Counsel for the Respondents: Ms B Anniwell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 3 January 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $ 6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 15 of 2014

SZTSY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 3 January 2014 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 December 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. In evidence before the Court was a bundle of relevant documents filed by the Minister in these proceedings (“Court Book” – “CB”). The following background is relevant.

2. The applicant is a citizen of Bangladesh who arrived in Australia on 29 October 2011 (CB 13). He applied for a protection visa on 28 November 2011 (CB 1 to CB 47 with supporting documents). He was assisted by a registered migration agent (CB 8).

3. His claims to protection were initially set out in a written statement accompanying his application form (CB 33 to CB 35). He claimed to have been born into a Hindu family, and that his father and grandfather were “religious preachers”.

4. He claimed to have commenced “preaching” the Hindu religion soon after leaving college. On 25 June 1995 he was beaten by “friends” who did not “accept” his “religious opinions”. His house was ransacked the next day, and threats were made against him.

5. In 1996 he left his home and relocated to Dhaka. There he became affiliated with, and a devotee of, the “International Society for Krishna Consciousness” (“ISKON”). He subsequently returned to his home, where he continued to work with other “religious devotees”.

6. He claimed that on 10 February 1997 he was attacked by “fanatic Muslims” while attending an ISKON meeting. He claimed to have been seriously injured and did not recover until 2001. He was in a wheelchair for this period. His father’s attempts to file a complaint with the police were unsuccessful.

7. The applicant claimed that because of his religious activities, the attacks on him and his family continued. Following an incident on 25 May 2011, where he was beaten into unconsciousness, the police again refused to take a complaint from his father.

8. Before the delegate the applicant further claimed that he was expelled from his College for two months, because of his religious observances, and that when his father approached the police after the 2011 incident, it “emerged” that a false allegation had already been raised against the applicant stating that he had been attempting to convert Muslims (CB 59 to CB 60).

9. The delegate was unable to reach the requisite level of satisfaction such that the visa must be granted, because of a large number of concerns about the applicant’s credibility. In particular, the delegate found inconsistencies in the applicant’s evidence and claims, and the applicant’s vague responses to questioning, to be lacking in detail and relevant explanation (CB 61 to CB 68).

10. The applicant applied for review to the Tribunal on 28 November 2012 (CB 72 to CB 80). He was represented by a registered migration agent who is also a lawyer (CB 75 to CB 80).

11. The applicant, his representative, and a number of witnesses attended a hearing before the Tribunal on 16 October 2013. Following the hearing, the Tribunal wrote to the applicant inviting him to comment on, or respond to certain information. This involved inconsistences and omissions between what he told the delegate at the interview, and his evidence to the Tribunal at the hearing (CB 259 to CB 263).

12. The Tribunal found that the applicant was not a credible witness and had not been truthful about claimed events in Bangladesh and his reasons for leaving. It gave reasons for this finding. On this basis, the Tribunal rejected the applicant’s claims to have suffered harm in the past ([10] – [29] at CB 276 to CB 280).

13. Despite some concerns, the Tribunal gave the applicant the benefit of the doubt, and accepted his claimed religious beliefs. The Tribunal was influenced by the applicant’s witnesses in this regard. It found each of them to be credible and frank witnesses ([31] – [32] at CB 280).

14. The Tribunal then considered, despite its finding that the applicant had not been harmed in the past, whether he would be the subject of harm if he were to return to Bangladesh, because of his involvement with ISKON ([33] at CB 281).

15. The Tribunal considered information from a large number of sources and found that there was no suggestion that Hare Krishnas are persecuted in Bangladesh.

16. The Tribunal found that there was no real chance the applicant would be harmed because of his beliefs, if he were to return to Bangladesh ([34] – [38] at CB 281 to CB 283).

17. The Tribunal also considered whether the applicant would suffer harm as a result of his preaching, or his having worked as a journalist. It was not satisfied that a real chance of harm would arise from either matter [39] – [40] at CB 283).

18. The Tribunal found the applicant did not meet the criterion at s.36(2)(a) of the Act ([41] at CB 283). It relied on factual findings expressed earlier, to find that he did not meet the criterion at s.36(2)(aa) of the Act.

Application before the Court

1. The application before the Court contains three particularised grounds:

   “1. The Tribunal failed to consider relevant considerations, failed to ask relevant questions and failed to engage in constructive inquisitorial inquiry.

   Particulars

   The Tribunal failed to ask and consider my claim under the imputed political opinion against the political parties passively or actively promoting Islam as the state religion of Bangladesh including the Bangladesh Nationalist Party and Jamaat-e-Islami. The Tribunal failed to consider and assess my claim under imputed political opinion ground either under the Refugee Convention or under the Complementary Protection ground.

   2. The Tribunal failed to consider my claims according to law.

   Particulars

   The Tribunal failed to consider and assess my claim under the particular social group ‘ Member of a family of Hindu preachers. The Tribunal failed to consider and assess my claim under the above particular social group.

   3. The Tribunal failed to assess my claim according to law.

   Particular

   The Tribunal failed to consider and assess my claim under the particular social group ‘ Member of a family of Hindu preachers under the Complementary Protection ground. If failed to assess the claim under complementary protection ground of ‘significant harm’.

   The Tribunal mentioned that it did not satisfy that the applicant is a person in respect of whom Australia has protection obligations under s36(2) (aa). The Tribunal assessed my claims and provided reasons under the ‘serious harm’ ground of Refugee Convention but failed to provide reasons why it did not satisfy I am not a person in respect of whom Australia has protection obligations under the complementary protection criteria of ‘significant harm’. Particularly, the Tribunal failed to address my fear Member of a family of Hindu preachers under the complementary protection ground criteria of ‘significant harm.”

Before the Court

1. The applicant appeared in person at the final hearing before the Court. He was assisted by an interpreter in the Bangla language. Ms B Anniwell of counsel appeared for the first respondent. Both parties have filed written submissions in these proceedings.

2. At the hearing the applicant sought an adjournment. He complained that at the first Court date (26 February 2014), when orders were made for the progress of the case, the interpreter did not explain that there was a date by which written submissions were to be filed. He sought more time to file written submissions.

3. The difficulty with this complaint is that the applicant did file written submissions on 26 August 2014. When this was pointed out, he submitted that he still sought more time “…to explain the same thing…but in a better way”. The applicant stated that he had a lawyer who would assist him in this regard.

4. The Minister opposed the application for an adjournment. He relied on the following. One, in MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 (“MZZZL”) Judge Lucev summarised the elements relevant to the consideration of an application for an adjournment (see at [9] – [10]). The Minister relied on a number of those elements relating to Court resources, wasted public funds and availability of hearing dates.

5. Two, the applicant had already had a reasonable period to file his written submissions, and, more broadly, even as a unrepresented person, to prepare for, and argue his case (see Singh v Minister for Immigration and Border Protection [2014] FCA 563 at [15] per Perry J).

6. Three, there is no right to free legal advice in matters of this type. Any refusal of an adjournment on this basis is not revelatory of a failure to afford procedural fairness (see MZZZL at [11] and see further SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; WZANN v Minister for Immigration & Another [2009] FMCA 643 at [3] and [9] per Lucev FM).

7. Four, in any event, on the applicant’s own submissions, he had already consulted a lawyer, prior to the lawyer who was to assist with his proposed further written submissions.

8. In all the circumstances I determined that the adjournment should not be granted. The Minister’s submissions were persuasive as against the applicant’s reasons for the adjournment. Notwithstanding this, I did make an order allowing the applicant to file further written submissions for the purpose, as he had stated, to better explain his grounds.

9. These submissions when subsequently filed, however, were not directed to the grounds of the application but sought to raise additional grounds of review. In any event, these are dealt with below.

Ground One

1. Ground one, when read with the particular, complains that the Tribunal failed to consider, and failed, in effect, to properly deal with his claims, in relation to both the criteria at s.36(2) of the Act. This appears to be explained by the assertion that he would be at risk because he would be imputed with having a political opinion against parties promoting Islam as the state religion of Bangladesh, which included the Bangladesh National Party (“BNP”) and Jamaat-e-Islami.

2. The applicant’s written submissions do not assist with any further explanation. Nor was the applicant able to further explain the ground before the Court.

3. A number of propositions flow from the Minister’s submissions, which must be accepted. First, in relation to the assertion that the Tribunal failed to consider a claim, the question for the Court is whether the Tribunal failed to “perform the statutory task imposed on the Tribunal by the relevant provisions in the Migration Act” (Minister for Immigration and Border Protection v  MZYTS [2013] FCAFC 114).

4. Second, whether or not the Tribunal failed in this task may be assessed with reference to the Tribunal’s decision record. The Minister relies on Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”) at [47] for that proposition and how the Tribunal’s decision record may be of assistance in this regard (WAEE at [47]):

   “[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

5. To those propositions, I would add the direction provided in other relevant authorities. The Tribunal’s relevant obligation is to deal with all claims, and aspects of claims, expressly made or clearly arising on the material presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [68]; WAEE; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244). Relevantly, the obligation on the Tribunal is to consider all substantial and clearly articulated claims relying on established facts, expressly made or clearly arising from the circumstances presented (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).

6. A difficulty for the applicant is that he has not identified the basis upon which, he now says, he made a claim to have been imputed with a political opinion by those parties promoting Islam as the state religion in Bangladesh.

7. Variously, the applicant claimed to fear harm, because of his beliefs and active Hindu religious activities, from “fanatic Muslims” (written statement at CB 34), and from Muslim friends (interview with the delegate at CB 59).

8. The central assertion in the particular to ground one appears to have been taken from a part of the applicant’s representative’s written submissions to the Tribunal of 13 September 2013 (at CB 93):

   “…

   The applicant fears that he will be seriously harmed if he returns to Bangladesh for reasons explained in his statement.

   1. It is submitted that the applicant is a person to whom Australia has protection obligations, as he has well-founded fear of suffering persecution for Convention reasons if he returned to Bangladesh for the cumulative reasons of:

   Religion: (a) Practicing Hindu, particularly member of the International Society for Hindu Krishna Consciousness [ISKON]

   Political Opinion (Imputed): Imputed as holding political opinions against the parties passively or actively promoting Islam as the state religion of Bangladesh including the Bangladesh Nationalist Party and Jamaat-e-Islami.

   Particular Social Group

   : (i) Preacher of International Society for Krisna Consciousness [ISKON] Movement principles. ( Hare Rama Hare Krishna Movement)

   (ii) Member of a family of Hindu preachers.

   (iii) ISKCON member perceives as involved in religious conversion activities.”

9. A number of matters are of note from the above. First, the representative asserted that imputation of a political opinion was reflective of what was “explained” in the applicant’s “statement”. In context, as at that date (13 September 2013), this must have been a reference to the statement accompanying his application for the protection visa (CB 33 to CB 35).

10. There is nothing in that statement to provide a probative basis for the representative’s submissions. The applicant’s statement was clear that his fear of harm was from “fanatic Muslims”, because of his religious beliefs and activities. Not because of any imputed political beliefs. Nor is there any reference in that statement to the BNP or Jamaat-e-Islami.

11. Second, however, it can be accepted that the representative is able to subsequently advance claims on the applicant’s behalf, irrespective of what the applicant said in his earlier written statement. Taken on its face, therefore, the applicant’s claim, through his representative, before the Tribunal, can be seen to be an assertion of having imputed to him a political opinion as being against the BNP and the Jamaat-e-Islami.

12. The difficulty is that the representative’s submissions do not explain, beyond this mere assertion, how the applicant’s religious beliefs and activities would be seen as providing a basis for the imputation of a “political opinion”, as being against the BNP and Jamaat- e- Islami.

13. Nor does the remainder of the representative’s considerable written submissions to the Tribunal provide any further basis to say, that any additional political element was added to the applicant’s contention. For example, the topics canvassed in the submissions include: “Persecution Against Religious Minorities, particularly against Hindus”, “Religious Freedom”, “Rising Islamic Fundamentalism in Bangladesh”, “Training for Terror”.

14. Two days before the Tribunal hearing (14 October 2013) the applicant’s representative submitted a Statutory Declaration from the applicant (CB 245 to CB 249). The applicant declared that the statement is in further support of his application. Any plain reading of that document shows that the applicant’s claim to fear harm on return to Bangladesh derived from his membership of ISKON, and his Hindu activities in Bangladesh and Australia.

15. The religious focus and basis of his claim can also be seen in the reasons the applicant declared, as to why he cannot relocate to other parts of Bangladesh (at CB 247):

    “…7. Why I can not relocate in other parts of Bangladesh.

    Recent country information from Bangladesh gives clear evidence of religious intolerance in Bangladesh. I feel after the next general election, Bangladesh Nationalist Party may form the next government with the help of the Islamic extremist party, Jamaat. One of the objectives of the BNP and the Jamaat is to make Bangladesh an Islamic State. I fear I will be singled out in Bangladesh but the Islamic extremists because of my involvement in promoting and propagating Krishna Consciousness. Even if I were to relocate to other parts of Bangladesh I will continue to be involved in preaching Krishna Consciousness because it is my belief that by chanting the Maha Mantra one can achieve inner peace and also publicise the teachings of ISKCON. As a Hindu I am easily identified all over Bangladesh.”

    [Emphasis added.]

1. What remains, at its highest, on the claim advanced by the applicant in his representative’s submissions (see [38] above), is that the applicant would be imputed as holding political opinions contrary to, or “against” those actively promoting Islam.

2. When properly understood, in all of the circumstances presented to the Tribunal, the applicant’s claim that he would be imputed with such a political opinion, arose solely from his Hindu religious profile, and his Hindu religious activism, as expressed through his membership of ISKON, his Hare Krishna practice, and its promotion through preaching and teaching.

3. In this light, I agree with the Minister that this claim (that is the “political” dimension raised in submissions) was subsumed, if not directly addressed, in relevant findings made about the applicant’s status as a Hare Krishna devotee and preacher.

4. In its analysis, the Tribunal made specific reference to a large body of country information. In light of the general complaint in the applicant’s ground, I note that some of this information was derived from country reports submitted by the applicant’s representative.

5. The Tribunal referred to various reports about violence directed towards Hindus ([35] at CB 281 to CB 282). Of particular relevance is the Tribunal’s statement in its decision record, that at the hearing, in its discussion of country information, amongst other country information, a report from the US Department of State (May 2013), that minority religious groups in Bangladesh, including Hindus, were subjected to violence from Sunni Muslims ([35] at CB 281 to CB 282).

6. The Tribunal specifically noted with the applicant that this report ([35] at CB 281 to CB 282, footnote omitted, emphasis added):

   “…states that the ‘government and many civil leaders’ believe that ‘violence against members of minority religious groups normally had political or economic dimensions, and could not be attributed solely to religious belief of affiliation’…”.

7. The applicant has not put any evidence before the Court now to challenge what the Tribunal said had occurred at the hearing with him. The following, from the Tribunal’s decision record, is of importance in understanding exactly what the applicant claimed, as the basis of fear, before the Tribunal. Immediately following the reference extracted above (at [50]) the Tribunal then states ([35] at CB 282):

   “[35]… When this country information was discussed with the applicant at the hearing he replied that religion and politics are interrelated but did not provide any other comments.”

8. As it was presented to the Tribunal, therefore, the assertion of the risk of imputed political opinion arose from his religious circumstances and activities in Bangladesh, and violence towards religious minorities. There was nothing further from the applicant, in his evidence or claims to the Tribunal that went beyond the general, and mere, description of the religious ground, with a “political dimension”. In short, the applicant’s claim, in relation to the imputed political opinion, derived from, and was limited to, the claimed circumstances relating to his religious beliefs and activities.

9. The Tribunal also found that country information, which it considered, did not suggest that Hare Krishnas were persecuted in Bangladesh. This again, on the Tribunal’s account, was discussed with the applicant at the hearing. The Tribunal considered the applicant’s response, and relied on its analysis of the country information for its finding ([37] at CB 282).

10. The Tribunal also found, as was reasonably open to it, given relevant country information before it, and findings about the applicant’s evidence, that the applicant had not been attacked in the past by fanatical Muslims ([15] at CB 277 and [28] – [29] at CB 280). Further, in this analysis, the Tribunal found that he had not been attacked by members of Jamaat-e-Islami in the past, as he had claimed.

11. At [38] of its decision record, the Tribunal stated (at CB 283):

    “[38] In light of the above country information and the finding of the Tribunal that the applicant has not suffered any harm in the past, the Tribunal is not satisfied that there is a real chance that the applicant will be harmed because of his religious beliefs if he was to return to Bangladesh now or in the reasonably foreseeable future.”

12. In all the circumstances, that finding addressed the extent of the applicant’s relevant claim, as it was ultimately put to the Tribunal. The analysis, and findings leading to this conclusion, addressed the claim of fear, by reason of imputed political opinion, as that had been made by the applicant.

13. A closer reading of the applicant’s ground, read without the particular, reveals the limitation of his complaint. The ground, on this closer reading, does not assert a failure to consider a claim, but rather a failure to consider relevant considerations, to ask relevant questions and to “engage in constructive inquisitorial inquiry”.

14. Given what is set out above in this judgment, the ground can be properly understood as complaining that the applicant made a claim asserting imputed political opinion as a basis to fear harm. However, the Tribunal failed to investigate this claim, by failing to ask relevant questions.

15. The following, at least, can be said here. First, it is for an applicant to make out his case. That is no obligation on the Tribunal to do so (SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233, Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155). The Tribunal’s relevant obligation is to provide the applicant with a meaningful opportunity to provide his evidence, arguments and explanations in support of his claims, and indeed to enlarge on the number of claims if appropriate.

16. Second, the evidence before the Court is that the Tribunal did just that. It invited the applicant to a hearing pursuant to s.425 of the Act. The applicant attended, as did his representative, and a large number of witnesses. Witnesses, which it must be noted, were so persuasive and credible in their evidence, in relation to one key part of the applicant’s claims, that the Tribunal accepted those claims, despite its concerns about the credibility of the applicant’s own evidence (see at [32] at CB 280).

17. Third, the applicant was represented before the Tribunal by a registered migration agency, who were also a firm of solicitors. They made written submissions on the applicant’s behalf which were 96 typed pages long. Other than the reference to imputed political opinion made at page 1, there is nothing in the remainder of that document to directly, expressly, or clearly link this to any relevant explanation, arising from the applicant’s circumstances.

18. Fourth, there is no general duty on the Tribunal to conduct any investigation of the applicant’s claims, in the sense of making further inquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [21]- [22] per Gummow and Hayne JJ). There may, however, be some circumstances where the Tribunal should make an inquiry. These were explained by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel And Bell JJ):

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction[35]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.”

    The circumstances of this case do not fall within the explanation provided by the High Court.

19. Fifth, and in any event, the Tribunal did make relevant inquiries of the applicant at the hearing. As set out above, the Tribunal specifically drew his attention to country information and allowed for a “political dimension” to his claim that was based on religion. The applicant did not take up the opportunity to provide what his ground now asserts is the unidentified relevant considerations that the Tribunal should have investigated.

20. The applicant’s representative was present at the Tribunal hearing. There is no evidence before the Court that the representative sought to assist with this matter at the Tribunal hearing. Nor that any attempt was made to pursue it in writing after the hearing. In all, ground one as pleaded is not made out.

21. The applicant’s further written submissions appear to raise a new complaint in relation to ground one, or even a “new” ground of review. The complaint is that the Tribunal failed to consider his claim, that as a Hindu he was a member of a minority group in Bangladesh where, the majority of the population are Muslim.

22. The applicant refers to SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18 at [62] and [68], apparently to suggest the proposition that while he did not expressly make a claim to fear harm because he was a member of a minority group, the Tribunal was nonetheless required to consider this.

23. This complaint cannot be made out. The applicant claimed to the Tribunal to be a practicing Hindu in Bangladesh. The Tribunal considered this claim. It accepted that he was Hindu, and a member of the ISKON temple, and was involved in its activities ([32] at CB 280).

24. In this regard, the Tribunal considered the applicant’s claims, with specific reference to available country information before it. The Tribunal recorded the percentage of Hindus in Bangladesh, as a proportion of the population, and reports of violence directed to Hindus and Hindu temples, and specifically violence, from the majority Muslim population, towards Hindus.

25. The Tribunal relied on country information, and the finding that he had not suffered harm in the past, to conclude that it could not be satisfied that the applicant would be harmed because of his religious beliefs ([38] at CB 283). This was reasonably open to the Tribunal. The applicant’s complaint seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Ground 2

1. Ground two asserts a failure to consider the applicant’s claims according to the law. The particular to the ground explains that the allegation of error is that the Tribunal failed to consider the applicant’s claim to fear harm with reference to a particular social group: “Member of a family of Hindu preachers”. No further relevant explanation was provided by the applicant to the Court.

2. There are a number of difficulties for the applicant with the ground as pleaded. The applicant’s representatives made written submissions to the Tribunal alleging, amongst a number of other matters, that the applicant feared serious harm on return to Bangladesh because of his membership of a particular social group identified as: “Members of family of Hindu preachers” (see CB 93 and [37] above).

3. The only relevant reference to this is the written submissions, appears to be at CB 161:

   “…Particular social group (iii): Member of a family preaching Hinduism

   133. We submit that Members of a family unit preaching Hinduism are a particular social group. The immutable characteristic of this particular social group is Members of a family unit preaching Hinduism which distinguishes the group from the rest of the society. Further, this shared characteristic is not the shared fear of persecution. The reports mentioned earlier indicate that Hindus continue to face serious harm at the hands of Islamic fundamentalists. Accordingly, we submit that our applicant who may be easily identified in Bangladesh due to his physical appearance and his religious association with ISKCON will face a real chance of persecution in Bangladesh…”

4. As is made clear, the fear is said to emanate from the context of claimed violence against Hindus, by Islamic fundamentalists. The representative made lengthy references to “reports” about rising Islamic fundamentalism and persecution against religious minorities, including Hindus (see, for example, CB 102).

5. A number of matters argue against the applicant’s ground. First, the Tribunal did consider the applicant’s claim to fear harm because of “preaching” (at [39] (CB 283), the Tribunal stated:

   “[39] The applicant also referred to fears about returning to Bangladesh because of his preaching.  However, when questioned about the extent of his preaching he stated that he does not preach to Muslims but rather just within the Hindu community.  The applicant stated at the hearing that it is not illegal to preach in Bangladesh.  In light of this and the lack of past harm to the applicant, the Tribunal is not satisfied that there is a real chance that the applicant would be harmed as a result of preaching within the Hindu community in Bangladesh.”

   [Emphasis added.]

6. Second, it is the case that there is a difference, at the very least in emphasis, between a claim to fear harm because of “preaching” in the applicant’s own right, and a claim to fear harm because of a tradition of preaching in the applicant’s family as a whole

7. However, apart from the mere reference to a family of Hindu preachers in the representative’s submissions, there is nothing in the material before the Tribunal to show that the fear of harm, in relation to preaching, took on a different dimension, because the applicant came from a family of preachers.

8. At best, the applicant’s claim before the Tribunal was that he “inherited” Hindu religious knowledge from this father, and that his “family environment influenced me to be involved in preaching…” ([4] at CB 33).

9. The understanding I have taken of the applicant’s claims before the Tribunal, is supported by the applicant’s own written submissions before the Court (applicant’s written submissions of 8 September 2014 at 3.2):

   “[3.2] It is true that I have made no factual claim as to my family being a family of ‘Hindu Preachers’. Tribunal has failed to consider my situation and it is not an essential for anyone to be a preacher with a family background with preaching. My forefather’s were ‘Hindu’ and I am a ‘Hindu’. My parent being practicing ‘Hindu’ taught me the essence of ‘Hinduism’ and practice. A religious belief required certain ‘acts or omissions’. These ‘certain acts or omission’ is not acceptable to other religious group with political will and motivation...”

10. Third, I agree with the Minister that, even if the applicant had made some separate claim to fear harm because of his membership of a family of Hindu preachers, this is not a group that can be characterised, in the circumstances presented, as a particular social group for the Refugees Convention.

11. The Minister does not dispute that a family can constitute a particular social group for the purposes of the Refugees Convention (Giraldo v Minister for Immigration & Multicultural Affairs [2001] FCA 113 at [42] and [44]). However, the applicant’s family group would still need to satisfy the requirements of a “particular social group”, as explained by the High Court in Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 (“Applicant A”) and Applicant S v Minister for Immigration [2004] HCA 25; (2003) 217 CLR 387 (“Applicant S”).

12. In Applicant S, the High Court held (at [36]):

    “[36] Therefore, the determination of whether a group falls within the definition of ‘particular social group’ in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a ‘social group’ and not a ‘particular social group’. As this court has repeatedly emphasised, identifying accurately the ‘particular social group’ alleged is vital for the accurate application of the applicable law to the case in hand.”

13. In Applicant A (per Dawson J) the High Court stated (at [241]):

    “"The adjoining of "social" to "group" suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word "particular" in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart form society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society."

14. Further, in Applicant A Mc Hugh J at [264] – [265] said:

    “"The use of the term "membership" in conjunction with "particular social group" connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest, or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group. Those immediately killed or robbed by guerrillas, for example, are not a particular social group."”

15. The Minister referred in his submissions to Minister for Immigration and Multicultural Affairs v Zamora [1998] FCA 913 (“Zamora”) for the following view of what was said in Applicant A (“Zamora”):

    “…To determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Thirdly, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community…”

16. The Minister submitted that there was no evidence or material before the Tribunal that the applicant’s family were Hindu preachers (see respondent’s written submissions at [24.1]). That submission needs some clarification. The applicant did claim in his statement of 28 May 2011 (lodged with his protection visa application) that his father and grandfather were, amongst other things, “religious preachers” ([1] at CB 33).

17. As set out above, the applicant agreed in his written submissions to the Court, that he made no claim to fear harm because his family were Hindu preachers. Rather, this reference to his family tradition was put to explain his own claim to be a Hindu preacher.

18. However, it is not necessary in the current case to rely on this point to reject the applicant’s ground. That is because, as the Minister correctly, and otherwise submits, there was no material before the Tribunal to say that families of Hindu preachers were set out as a social group in Bangladesh, or that families of Hindu preachers were recognised by Bangladesh society as a group so set apart.

1. I agree with the Minister that the group identified by the applicant’s ground (“member of a family of Hindu preachers”) cannot, in the circumstances presented, be said to be a particular social group for the purposes of the Refugees Convention, or the Act. In all, ground two does not reveal jurisdictional error.

Ground Three

1. There appear to be a number of elements to the applicant’s complaint in ground three. First, that the Tribunal failed to consider the claim to fear harm based on his membership of a particular social group (“member of a family of Hindu preachers”), under the complementary protection criterion for the protection visa. Second, that while the Tribunal considered his claims under the “serious harm” ground of the Refugees Convention, it did not consider, or assess, his claims under the complementary protection criterion. In subsequent written submissions that appears to be explained as a failure to provide separate reasons as for the consideration under s.36(2)(aa) of the Act, different to the consideration in relation to s.36(2)(a) of the Act. That is, a failure to apply the correct test to the complementary protection criterion.

2. In relation to the first element of the complaint, it must be noted that the concept of fear of harm (“serious harm” and “persecution” – see s.91R of the Act) for reason of membership of a particular social group, is a concept relevant to the Refugees Convention (see Article 1A(2) of the Refugees Convention).

3. This was, contrary to the complaint expressed in ground three now, plainly understood by the applicant’s representatives before the Tribunal. Their reference to “member of a family of Hindu preachers” in the representatives’ submissions, was plainly put in the context of a fear of persecution for a Refugees Convention reason (see CB 93 and CB 161). The representatives’ submissions also understood the distinction between the s.36(2)(a) criterion, and the s.36(2)(aa) criterion, for the grant of the protection visa (see [170]- [171] at CB 171to CB 172 and [194] at CB 181 to CB 182).

4. As set out above, the applicant’s claim to fear harm on return to Bangladesh ranged over a number of matters. Ground three, as particularised, refers to his claims of membership of a particular social group. Taking the complaint at its best for the applicant, what can be said to be the complaint, is that the Tribunal failed to consider his claimed fear of harm, arising from his preaching, as it related to complementary protection, to the extent that he came from a family of preachers.

5. It is important to note that that specific claim was not made in relation to his family background and complementary protection. The claims under complementary protection were the fear of torture (CB 176) and violation of his human rights (CB 171 to CB 183). The fear of torture and the violation of his rights was, at best, said to be because he would be denied religious freedom (see “Freedom of Religious and Complementary Protection” – CB 183 to CB 187).

6. In subsequent submissions to the Tribunal, this was further clarified to be the attack on Hindus by Muslims (CB 193 to CB 197) and religious intolerance ([7] at CB 247). That was explained as being a fear of harm because of his promotion and propagation of “Krishna Consciousness”, not necessarily because of his family tradition of preaching.

7. In any event, in relation to preaching, the Tribunal specifically considered the matter of harm as a result of preaching, and more generally because of his religion, in the context of complementary protection (see [43] at CB 283). The claim that the Tribunal failed to consider, or assess, his claims under complementary protection, in this regard, is not made out. The Tribunal’s finding here was reasonably open to it on what was before it.

8. In subsequent written submissions to the Court in relation to ground three, the applicant sought to provide a different particular to ground three. Here, he asserts that the Tribunal failed to assess his claims “‘under the particular social group’ under the Complementary Protection ground” because ISKON is a “social group”, and his association with ISKON was “substantiated” by “relevant ‘social group’s’ references and published documents” (see [5.1] of Applicant’s written submissions of 8 September 2014).

9. Dealing first with the matter of the documents, and the claim they substantiated his membership of ISKON. Those documents, according to the applicant’s submissions, are reproduced at CB 193 to CB 217.

10. It is not clear what jurisdictional error is being asserted here. At best, it may be the complaint is that the Tribunal did not raise with him for comment any question as to the authenticity of those documents (see 5.1 of Applicant’s written submissions of 8 September 2014).

11. As the Minister submits, the authenticity of those documents, which the applicant submitted in support of his claim to be a member of ISKON, was not in issue. This is because the Tribunal accepted that he was a member ([32] at CB 280). It proceeded to consider his claims on that basis ([33] at CB 281).

12. To the extent that the written submissions seek to complain that the applicant claimed to be a member of a particular social group, namely a member of ISKON, and that the Tribunal failed to consider this in the context of complementary protection, that also must be rejected. The Tribunal found that it was not satisfied that there were “substantial grounds for believing that there is a real risk that the applicant would suffer from significant harm because of his religion in relation to Bangladesh” ([43] at CB 283). The Tribunal gave reasons for this. Its findings were reasonably open to it, on what was before it. No jurisdictional error is revealed here.

13. Finally, the applicant complains that the Tribunal did not separately consider the criterion of “complementary protection”. That is, that it “transposed” findings in relation to the Refugees Convention, to the consideration of complementary protection.

14. First, it must be noted that in its exposition of the relevant law, the Tribunal plainly distinguished between the two separate criteria at s.36(2) of the Act (see CB 285 to CB 287). Second, there is nothing in the bulk of the decision record to say it failed to understand this distinction.

15. Third, the Tribunal is entitled to rely on findings of fact, made earlier in its analysis, in its consideration of the complementary protection criterion (SZSGA  v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (“SZSGA”) and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125. As Robertson J said in SZSGA (at [55] – [56]):

    “[55] I reject the appellant’s submission that the Tribunal’s “dealings” with the complementary protection claim was “bound up” in Refugee Convention-related thinking. In the paragraphs I have set out, the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact.

    [56] There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.”

16. In all, ground three, as pleaded, and as differently explained in written submissions, is not made out.

Conclusion

1. In all, the applicant’s grounds and complaints in his submissions do not reveal jurisdictional error on the part of the Tribunal. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  6 February 2015