SZURL v Minister for Immigration

[2015] FCCA 957

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZURL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 957

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

Legislation: 

Migration Act 1958 ss.36(2)(aa) 476

Applicant: SZURL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1915 of 2014

Judgment of: Judge Street

Hearing date: 15 April 2015

Date of Last Submission: 15 April 2015

Delivered at: Sydney

Delivered on: 15 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms S. Given
Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1915 of 2014

SZURL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 12 June 2014 affirming a decision not to grant the applicant a Protection (class XA) visa.  The application identifies the following grounds:

   1. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

   Particulars

   I claimed that I will face harm because I am a supporter of the Bangladesh Nationalists Party (BNP).   The Tribunal has accepted that I am a member of the BNP in Bangladesh and was the Publication secretary in 1998. However, it failed to assess my harm on the basis of my support to the BNP in light of the recent country information submitted my legal representatives in their submission in paragraph 28 which clearly stated the government is preparing to initiate a “cleaning mission” against political opposition and those who have raised a voice against the regime. The Tribunal failed to assess my claim in light of this very relevant recent country information.

   2. The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim.

   Particulars

   Though, the Tribunal discussed my claim on the basis of my political opinion supporting the BNP, the Tribunal failed to consider my claim under the political opinion against the current government, the Awami League Party. In paragraph 43 of my legal representatives submission clearly state that I may be regarded as an “enemy of the State” by virtue of holding and propounding views which as contrary to the views of the State or its Government… The Tribunal failed to consider the relevant aspect of my claim.

2. It is clear from the findings of the Tribunal that the applicant’s claimed fear arising from membership of the BNP was properly addressed and the subject of an adverse finding at paragraph 38.  It was a matter for the Tribunal to determine the weight to be given to the country information provided by the applicant. As the first respondent’s submissions made clear, the Tribunal reasons identified taking into account that information, at paragraph 20.  Accordingly ground 1 is an impermissible challenge to the findings of fact made by the Tribunal and discloses no jurisdictional error. 

3. Equally in relation to ground 2, it is clear that the Tribunal addressed the applicant’s claim in relation to being a person who had a political opinion against the Awami League party in paragraphs 36 and 37.  It is clear from the consideration given by the Tribunal to the applicant’s claims and evidence that the Tribunal properly dealt with the claims advanced by the applicant.  Moreover, it is clear that the Tribunal did not find the applicant to be a credible witness and further found that the documents produced by the applicant were not reliable.  It was open to the Tribunal to make those findings of credit in relation to the applicant and in relation to the material advanced by the applicant.  Accordingly there is no substance in either ground 1 or ground 2 of the application. 

4. The applicant was found to be a citizen of Bangladesh, and his claims were assessed against that country.  The applicant arrived legally in Australia in May 2012, and his passport indicated that he had travelled to India in August 2009, Malaysia and Thailand in February 2010 and to India again in April 2010.  There were also a number of other visas in his passport, as dealt with in paragraph 28.  The applicant’s family is still residing in Bangladesh.  The Tribunal carefully identified the inconsistencies in relation to the applicant’s claims, and the adverse findings were clearly open. 

5. The applicant applied for a protection visa on 7 June 2012.  It was refused by the delegate on 12 December 2012.  The applicant applied for review on 15 January 2013 and attended before the Tribunal to give evidence on 11 February and 4 April 2014.  The Tribunal carefully identified the information provided prior to the hearing by the applicant as well as the post-hearing information provided by the applicant on 10 April 2014.  I should note in relation to this application that the applicant had read in evidence an affidavit that annexed a number of translations of documents purportedly in existence in April 2012 and September 2012 and 15 May 2013.  No satisfactory explanation was provided by the applicant as to why those documents in their original form before translation were not available to the applicant at the time of the hearing before the Tribunal. 

6. This Court is not sitting as a Court of appeal, and the material annexed to the applicant’s affidavit sworn 17 February 2015 does not identify any basis upon which this Court could come to the view that there was a jurisdictional error in the conduct of the review by the Tribunal.  The Tribunal made adverse findings in relation to the applicant relevantly as follows:

   26. The Tribunal does not accept that the applicant was harassed, threatened, harmed or targeted for harm by those he claims, including Awami League cadres and /or supporters, and/or the police, for the reasons that he claims in Bangladesh, including because of the reporting of the rape of his niece by an Awami League supporter, or that there is a real chance he will suffer harm amounting to serious harm, or a real risk he will suffer significant harm, in his country for the reasons that he claims if he returns there. The Tribunal does not consider that the applicant has given credible evidence about his claims. The Tribunal does' not accept as true that the applicant reported the rape of his niece to authorities and/or that he is/was threatened with harm in his country for that reason. The Tribunal does not accept as true that the applicant was attacked at any time in his country as he claims for the reasons that he claims or that a false case has been filed against him or that there is a warrant outstanding for him. .It follows that the Tribunal does not accept as true that the applicant's family members were/are threatened in Bangladesh or that his brother was arrested and imprisoned for the reasons claimed by the applicant. The Tribunal does not accept as true that the applicant is of adverse interest to authorities in his country as he claims for the reasons that he claims. To the extent that the applicant is claiming that things will be worse for him in his country than they were before he left there because of the worsening security situation and the escalating political violence in Bangladesh the Tribunal does not accept this claim. In the case of this applicant the Tribunal finds that things will be no different for him if he returns to Bangladesh than what they were before he left Bangladesh in 2012 to travel to Australia.

   …

   28. Nor in the Tribunal's view is it consistent with the applicant's claims that he had to leave his country in 2012 because he was and will be threatened with harm/harmed in his country for the reasons that he claims that although he had visas for stays in a number of other countries he did not take advantage of those visas to escape the harm he claims he was facing in his country. from October 2008 when he lodged the case against the persons who raped his niece. His passport shows that he had a visa for a 30 day stay in India in July/ August 2009 and also in March/April 2010, a visa for Indonesia issued in Dhaka in June 2010 valid for 15 days, a visa for the Philippines valid between June 2010 and September 2010, visas for Malaysia dated 14 September 2009 and 20 May 20 l 0 issued in Dhaka for stays of 30 days, a 30 day visa for Nepal issued on 7 September 2009, a visa for Brunei issued at Dhaka in March 20 l 0 for a 30 day stay and a visa for Thailand issued 8 November 2009. The applicant agreed that he had obtained visas for Indonesia and the Philippines but said that he did not have time to go there. He said that he also had visas for Brunei and Nepal but he could not go to those places because he was busy with his work; he said that he wanted to go to these countries because they are beautiful countries. He said that he travelled to India in 2009 and in 2010 just to see India and Calcutta and that there was no other reason that he travelled there. He said that he went to India just for a few days on each occasion as he could not stay longer because of his business and because of his children and also his niece was staying with him.

   He also told the Tribunal that he visited Thailand and Malaysia in 2010 in the same trip and he went there to see his brothers and just to travel; his brothers invited him as the chairman of the company. He said that when he was in Malaysia he did some marketing for his business and bought some goods and then returned to Dhaka. He gave contradictory evidence in his statutory declaration declared 10 February 2014 about why he visited India, Malaysia and Thailand stating at para 4 that he visited these countries at different times "to escape from the accused" (in the rape case) and he also later told the Tribunal that he received a threatening message on his mobile when he was touring in Malaysia; the Tribunal does not accept that this evidence is true. It does not accept that the applicant left his country at any time to avoid threats or harm there. When the Tribunal asked the applicant why he did not take advantage of the visas he had to visit/stay longer in these countries given that he was having difficulties from Awami League members/supporters in Bangladesh according to his claims the applicant said that he did not intend to stay longer as his family was in Bangladesh and he had his company which could not run in his absence. ln the Tribunal's view this evidence is not consistent with the applicant's evidence that he was having such difficulties avoiding harm in his country that he had to hide when he returned to [J] and had to move around to different addresses in Dhaka from 2009 so his enemies could not find him there.

   29. The Tribunal does not accept as true that the applicant was in hiding at any time in his country to avoid harm for the reasons that he claims. He told the Tribunal that he had to stay at three different addresses in Dhaka to avoid harm from his enemies after 2009 until he came to Australia in 2012; he then said he had to stay in five different addresses. At the Tribunal's request he wrote down for the Tribunal two addresses where he stayed in 2009 and in 2010 but said that he could not remember the other addresses. He agreed with the Tribunal that the addresses were all around the same area in Dhaka and when the Tribunal queried this if he was moving to avoid harm he said that he had to stay around the same area so that his children could go to the same school as "there is a time limit to get children at the school". The Tribunal does not accept that the applicant was moving around in Dhaka at any time to avoid his enemies as he claims he did.

   …

   31. …The Tribunal does not accept that the applicant's explanation about how his family members are avoiding harm in Bangladesh is reasonable or plausible.

   32. Given the Tribunal's concerns about the applicant's credibility it does not accept as true the applicant's claims that his brother has been arrested and imprisoned in Bangladesh at the instigation of the Awami League because of the applicant's difficulties with the' Awami League members and supporters and/or because they cannot find the applicant.

7. I note the Tribunal was prepared to accept, although with some hesitation, that the applicant was a member of BNP and that he was selected in 1988 to the position of a publications secretary.  However, the Tribunal held:

   39. Further and based on the findings above 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 this 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').

8. In relation to the applicant’s alleged involvement with the BNP party in Australia, the Tribunal noted that the applicant did not contend that he will face harm in Bangladesh because he has attended BNP meetings in Australia.  The Tribunal identified that it did not accept as reliable documents provided in relation to his involvement with the BNP in Australia and did not regard the country information provided by the applicant as reliable evidence. 

9. The Tribunal made further adverse findings in respect of the applicant’s claims in paragraphs 36 and 37 as follows:

   36. The Tribunal does not accept that the applicant was or will be harassed, threatened, ham1ed or targeted for harm by those he claims, including Awami League members/supporters, and/or the police, because of his membership or affiliation with the BNP or because of his BNP activities in either Bangladesh or in Australia, or because he reported a rape of his niece by an Awami League supporter and the case is still pending. The Tribunal does not accept that there is a real chance that the applicant will suffer harm amounting to serious harm, or a real risk he will suffer significant harm, in his country for these reasons as he claims if he returns to Bangladesh.

   37. 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, the police 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.

10. It was in these circumstances that the Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh within the meaning of the Convention, and the Tribunal made an adverse finding against the applicant that there was not a real risk that he will suffer significant harm within s.36(2)(aa) if returned to his receiving country. On the material before the Court there is no jurisdictional error in the conduct of the review by the Tribunal. The application is dismissed.

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

Associate: 

Date:  17 April 2015