SZUSY v Minister for Immigration
[2019] FCCA 915
•9 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUSY v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 915 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the Applicant’s evidence or erred in relying on particular independent information. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425, 438 |
| Cases cited: BEG15 v Minister for Immigration & Anor [2016] FCCA 2778; (2016) 315 FLR 196 |
| Applicant: | SZUSY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2855 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 19 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2019 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2855 of 2015
| SZUSY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 1 October 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Bangladesh, arrived in Australia on 26 April 2013 on a Temporary Business Entry visa. He applied for a protection visa on 23 May 2013. In a written statement accompanying his application, the Applicant claimed that he arrived in Australia using a false Indian name and a passport he obtained from a broker in India. He claimed that he was a Buddhist monk who had served in a temple, that he left Bangladesh for India illegally in order to escape persecution for his religious beliefs, that Buddhists in Bangladesh were a minority and were persecuted and discriminated against in his home area and that he had been persecuted for his involvement with social and religious activities.
The Applicant claimed that in 2002 he had come to the attention of fundamentalist Muslims who physically assaulted him. He explained that his father had been a social activist who had been targeted by fundamentalists because of his profile in the Buddhist community. In particular, the Applicant claimed that in January 2002 a Bangladesh Nationalist Party (BNP) leader planned to establish a market on land in his village where there was a Buddhist crematorium. The Applicant’s father, as president of the local temple, had opposed this and had organised protest activities in which the Applicant was involved. He claimed that BNP and Jamaat-e-Islami (JI) activists attacked his family at their home and severely injured him and his father. The Applicant claimed that he spent two weeks in hospital and that his father died as a result of injuries received in this attack. He claimed the police had refused to take any action against the activists and had warned the Applicant to stop action against the activists.
The Applicant claimed that following his father’s death, fundamentalists continuously threatened his life because he had continued with initiatives to save the crematorium. He left the area for his safety, moving to a Buddhist monastery in Anwara in August 2003. He claimed that in 2006 the crematorium was occupied by the BNP and a market was established.
The Applicant was ordained as a Buddhist monk in November 2005 and was involved in teaching religion and other activities. He claimed he went home for a few days in March 2007 to visit his sick mother, but returned to the monastery after a JI activist who had been involved in attacking the family in 2002 saw him and questioned him. He claimed that a few days later other JI activists came to his family home and that his brother, who was threatened, told them of his whereabouts. He claimed that two weeks later a member of this gang came looking for him at the monastery.
The Applicant claimed he left that temple immediately and lived in another temple in Chittagong for about a year. He claimed that after a few months the Abbot of that temple had told him to leave Bangladesh and go to India for his safety. The Applicant went to India in October 2008 and lived there illegally with the support of a temple. He claimed it became difficult for him to stay in India as an illegal immigrant. He obtained an Indian passport in November 2011 and travelled to Thailand where he lived in a temple. He travelled to neighbouring countries and visited places of religious interest. He claimed he returned to India on 7 January 2013, but felt insecure so obtained a visa to come to Australia.
The Applicant claimed he had been persecuted, harassed and discriminated against in Bangladesh and that he had a real chance of being persecuted for his religious beliefs. He also claimed that minorities were denied access to basic guarantees of human dignity and were targeted by fundamentalists and BNP activists in Bangladesh.
The Applicant provided various supporting documents, including identity documents, medical documents, media articles and character references which referred to his oppression and persecution by Muslim terrorists and fundamentalists.
A delegate of the First Respondent refused to grant the Applicant a protection visa on 29 November 2013. The Applicant sought review by the then Refugee Review Tribunal. He provided written submissions which raised concerns about the delegate’s decision and referred to country information, including in relation to attacks on Buddhist monasteries and homes in Bangladesh in 2012.
The Refugee Review Tribunal affirmed the delegate’s decision on 25 June 2014. That decision was quashed by this court on 5 May 2015 (see SZUSY v Minister for Immigration and Border Protection [2015] FCCA 1138). The matter was remitted to the Tribunal for reconsideration. That reconsideration is the subject of these proceedings.
The Applicant’s representative provided additional documentation to the Tribunal as reconstituted, including supporting statements and copies of media articles and documents in relation to the Applicant’s family land and claimed incidents in 2013 involving the Applicant’s mother.
Relevantly, the Applicant’s mother claimed in a written statement that after living “under ground” for some years she and her younger son had returned to their village in 2013 and she had started to cultivate the family land that had been lying vacant. She claimed that terrorists had tried to take possession of the land and had threatened to kill her and that while a subsequent arbitration had found in her favour, the terrorists did not accept this. She also claimed that after she had unsuccessfully tried to initiate legal proceedings the terrorists, who had started to cultivate the land, had threatened to kill the Applicant’s younger brother so they fled the area.
The Applicant attended a hearing before the Tribunal as reconstituted on 3 September 2015. A transcript of this hearing is in evidence in these proceedings.
The Applicant provided two post-hearing submissions to the Tribunal addressing credibility issues raised at the hearing and enclosing additional information in support of his claims.
The Tribunal Decision
In its reasons for decision the Tribunal summarised the Applicant’s written and oral claims, submissions and supporting documentation.
The Tribunal accepted that the Applicant was a citizen of Bangladesh and a Barua Buddhist.
The Tribunal accepted that in 2002 there was an attempt by Muslims to occupy land in the Applicant’s village on which there was a Buddhist crematorium, that his father instituted a campaign to prevent this and was injured by local BNP and JI activists and died and that the Applicant was also injured, although he was not the main target.
However the Tribunal stated that it had “considerable difficulties” with the Applicant’s evidence as to what happened thereafter, given “inconsistencies, discrepancies and plausibility concerns” in relation to his various claims. The cumulative effect of these deficiencies was such that the Tribunal was not satisfied as to key substantive aspects of the Applicant’s claims as to what happened after his father’s death in 2002.
The Tribunal considered the Applicant’s explanation at the hearing (after these concerns were summarised) that he suffered from both high and low blood pressure which created a risk of a heart attack. It had regard to the absence of any medical report or opinion indicating blood pressure issues or heart issues would be a cause of a memory problem for the Applicant. It had regard to a medical report indicating the Applicant had hypertension which was controlled with medication as at May 2014. The Tribunal was not satisfied that this evidence demonstrated that the Applicant’s hypertension was a cause of memory loss or that it could explain the cumulative deficiencies in his evidence.
The Tribunal discussed perceived deficiencies in the Applicant’s evidence in relation to particular aspects of his claim in some detail. It then summarised its conclusions and findings about claimed events after the 2002 incident as follows:
83. A number of difficulties and inconsistencies have been identified in the evidence that the applicant continued to be of adverse interest to perpetrators after the death of his father in 2002, and that there have been recent attacks on the family and attempts to take over the family land:
· inconsistent evidence as to whether there were threats to the applicant following the 2002 incident and his leaving his village and whether he was active in protesting about the crematorium;
· the fact that the applicant’s claims that the perpetrators were looking for him when he was at the temple in Anwara lacks plausibility given his oral evidence in the first Tribunal hearing that he was ignored in the period after the 2002 incident leading up to his departure from his village;
· inconsistent evidence as to a key element of the sequence of events that occurred on his return to his village in the 2002, in terms of the visit to the family home by the perpetrators;
· the implausibility that a visit by perpetrators to the applicant’s family’s home in 2007 would cause his mother and brother to wait until 2009 or 2010 to relocate to Chittagong;
· claims for the first time in the second Tribunal hearing that, in fact, the applicant’s family moved from the village earlier than they moved to Chittagong;
· the fact that the applicant suffered no unwanted attention after 2007, notwithstanding that he was living in the same location in Chittagong for a year, which also seems at odds with his claim that his family had to constantly relocate in Chittagong for fear of being located;
· the failure of the applicant to provide claims in the first Tribunal hearing as to attacks and threats to the family, and attempts to take over the family land (which are stated to have occurred prior to the first Tribunal hearing); and
· concerns as to why terrorists would take no action to occupy the family’s vacant land for many years and only to decide to do so when the applicant mother started to cultivate it.
84. For all these reasons, the Tribunal does not consider that the applicant has been a witness of truth in relation to the continuing interest by perpetrators of his father’s death in the applicant after the events of January 2002. Nor does the Tribunal think the claims of a takeover of the family land and associated attacks on the family are true.
(errors in original)
The Tribunal found that its credibility concerns in relation to whether there were ongoing threats to the Applicant by the perpetrators of the 2002 events were buttressed by the lack of plausibility in the Applicant’s claims. It had regard to the fact that the focus of the 2002 attack was the Applicant’s father (not the Applicant) and that the perpetrators achieved their aims of occupying the crematorium in 2006. It did not strike the Tribunal as plausible or credible that the perpetrators would continue to pursue the Applicant or his family, including into other regions of Bangladesh, in these circumstances. The Tribunal also had regard to the fact that the Applicant’s mother and brother continued to live in the village for at least several years after the incident. It did not accept the Applicant’s claim about his family being contacted and threatened by the perpetrators in 2007.
In response to the Applicant’s claim that he and his family were considered marginal and that there was a never ending build-up of issues, the Tribunal accepted that independent evidence indicated that land disputes were a not uncommon source of tension and violence in Bangladesh. However it was not satisfied the Applicant was targeted on an ongoing basis as a result of the 2002 land dispute.
As discussed further below in relation to the grounds of the review, the Tribunal also found that while claims that family land was taken over in 2013 were not implausible, it did not think that the Applicant was credible in these claims. In making this finding the Tribunal stated that it had taken into account supporting references and statements, in particular a September 2013 reference from the Anwara temple indicating that in August 2002 the Applicant’s mother had asked the temple to give the Applicant shelter because he had been severely oppressed in his village by Muslim terrorists and that after the terrorists were informed about him he was sent to Chittagong. The Tribunal also referred to a reference that appeared to be from the Chittagong temple stating that the Applicant had taken shelter there, but had been advised to leave the country.
The Tribunal was not satisfied that these and other references which attested to the Applicant being pursued by Muslim fundamentalists ameliorated its credibility concerns. Nor was it satisfied that the statements from his mother, a village official and the Chief Abbot attesting to issues about the family land in 2013 ameliorated the credibility concerns it had outlined. The Tribunal was of the view that these statements had been provided as a means to support the Applicant’s claim for a protection visa, rather than reflecting the truth of the situation.
The Tribunal was not satisfied that the Applicant or his family were subject to threats after the January 2002 events; that the Applicant continued to take initiatives to save the crematorium; that his motivation in joining a monastery in Anwara was to escape those responsible for his father’s death; that the perpetrators continued to look for the Applicant when he was in Anwara; that the Applicant or his family was approached, interrogated or threatened by those associated with his father’s death at any time; that the perpetrators visited the Anwara monastery looking for the Applicant; or that the Applicant’s relocation to a temple in Chittagong, travel to India or to anywhere else was because of fear of the perpetrators. Nor was it satisfied that the Applicant’s mother and brother had relocated away from the village and continually relocated within Chittagong because of fear of the perpetrators or to avoid harm; that there had been attempts to take over the family land; or that the Applicant’s family had been attacked or threatened as part of that process.
While the Tribunal accepted the Applicant’s claims about the 2002 attack, it found that there had been no further threats or ongoing adverse attention to the Applicant from the perpetrators of the 2002 attack. Given this and the time that had passed since the 2002 incident, the Tribunal was not satisfied that there was a real chance that the Applicant would face any renewed adverse interest or serious harm from the perpetrators of the 2002 attack in the reasonably foreseeable future should he return to Bangladesh.
The Tribunal was also not satisfied that the Applicant would refrain from taking action with respect to the crematorium issue and his father’s death due to his fear of harm, given his past failure to act, the time that had passed and the fact the crematorium had been occupied. It considered that the Applicant would not pursue this issue if he returned to live in his home village.
With respect to the family land, the Tribunal was not satisfied that any claimed harm in relation to the family land would be for a Convention reason, as opposed to an opportunistic attempt to take over land. In any event, it was not satisfied that there had been any past action or takeover with respect to the land that would create a real chance of serious harm to the Applicant (in terms of any dealing he may wish to undertake with respect to the land). It was not satisfied there was anything particular in the circumstances of the Applicant or his family that created a real chance of serious harm to him based on action with respect to land more generally.
Insofar as the Applicant claimed that he was vulnerable because he no longer owned land, the Tribunal stated that it had no independent information to suggest that a person in Bangladesh would be at risk on the basis of not owning land. In any event, the Tribunal did not accept that the family had lost its land or that there was a prospect of it being taken that would create a real chance of serious harm (including if the Applicant felt he had to return to the land).
The Tribunal then assessed the Applicant’s claims to fear harm as a Buddhist. It accepted that the Applicant might want to resume living as a full-time monk and that, in any event, he would continue to practise his Buddhist religion.
The Tribunal had regard to independent information about the situation for religious minorities, in particular Barua Buddhists, in Bangladesh. Considering the weight of independent information and the Applicant’s evidence, the Tribunal was not satisfied that there was systemic mistreatment of Buddhists, including Buddhist monks, in Bangladesh that would lead to a real chance of the Applicant facing serious harm or persecution on the basis of his religion. It was of the view that his claim that the situation may change if a different political party was in power was speculative. It considered that there was nothing in the Applicant’s own circumstances that would change this assessment. It took into account the fact that the Applicant had suffered no difficulties due to his religion after the 2002 incident until his 2008 departure from Bangladesh and that during this time he had been able to pursue his religion in at least two Buddhist monasteries without incident.
The Tribunal was not satisfied on the information before it that there was a real chance the Applicant would be persecuted because of his Buddhist religion. Nor, based on independent information, was the Tribunal satisfied that there was a real chance the Applicant would face serious harm because of his Barua ethnicity.
The Tribunal also considered whether the Applicant’s evidence gave rise to a claim to fear harm based on his political opinion. It accepted that he had participated in a demonstration in Thailand in relation to events in Ramu, Bangladesh in September 2012, but noted that there was no evidence that he had engaged in political activity in Bangladesh (other than assisting his father in 2002 in campaigning against the occupation of the crematorium) or that he was involved in any political activities in Australia. It was not satisfied the Applicant had a desire to become politically involved, that his participation in the protest in Thailand provided a real chance of serious harm due to his political opinion or that there was any basis on which the Applicant faced a real chance of serious harm due to political opinion.
In summary, the Tribunal stated that it had considered the Applicant’s claims singularly and cumulatively, but remained unsatisfied that he had a well-founded fear of persecution on the basis of his religion, ethnicity, political opinion or for any other Convention reason, including due to threats or harm from persons associated with his father’s death in 2002; an attempt to take over the crematorium; any continued action regarding the crematorium; being a Buddhist monk; actions taken with respect to the Applicant’s family land in 2013 or more generally; or for any other reason.
The Tribunal concluded that the Applicant was not a person in respect of whom Australia had protection obligations under the Refugees Convention.
The Tribunal considered whether the Applicant met the complementary protection criterion. In that context, it reiterated its findings in various respects. On the basis of its previous findings that the Applicant had not been the subject of ongoing adverse attention following the January 2002 incident; that he had not pursued the crematorium matter; and that the crematorium had been occupied, the Tribunal was not satisfied that this event and its aftermath had resulted in a real risk of the Applicant facing significant harm should he return to Bangladesh. More generally, the Tribunal also concluded that there was not a real risk of the Applicant suffering significant harm based on his Buddhist religion or Barua ethnicity having regard to the weight of the independent evidence and the Applicant’s own circumstances.
As the Tribunal had not accepted the Applicant’s claims that his family land had been occupied and attacks perpetrated on his family, it did not accept that there had been any past adverse action taken with respect to the land that created a real risk of significant harm to the Applicant in the future. While accepting that land disputes were a key source of tension in Bangladesh, the Tribunal was not satisfied that there was a real risk of significant harm to minority land owners or, based on its earlier factual findings, a particular risk to the Applicant or his family in relation to their land. The Tribunal was not satisfied that the family ownership of land created a real risk of significant harm to the Applicant on return to Bangladesh.
The Tribunal found that it did not have evidence before it to suggest that there was a real risk of significant harm to the Applicant if he was not a landowner and reiterated that, in any event, it was not satisfied that the family land had been taken. The Tribunal was not satisfied that there would be circumstances which would cause the Applicant to act in relation to the land such as to create a real risk of him suffering significant harm.
After stating that it had considered the Applicant’s claims cumulatively, the Tribunal concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Bangladesh, there was a real risk that he would suffer significant harm as a consequence of any of the matters claimed or for any other reason.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
These Proceedings
The Applicant sought review of the Tribunal decision by application filed in this court. There are two grounds in the application. The Applicant did not file written submissions. At the hearing he was given the opportunity to elaborate on these grounds and to raise any other concerns about the Tribunal decision or procedures.
Ground 1
The first ground is as follows:
1. That the member erred in law when he did not really consider my explanation for why my mother did not tell me about returning to our home village or the attacks that they endured. He states that he finds my explanation unsatisfactory and then restates what he thinks without reference to my explanation (paragraph 74/75).
In oral submissions the Applicant contended that the Tribunal had not considered his explanation at the second Tribunal hearing for why his mother had hidden certain matters from him concerning her return to the village in 2013 and in relation to the family land. He explained that his concern was that while the Tribunal had probably looked at his explanation, it did not accept it. The Applicant took issue with the Tribunal’s failure to accept his explanation for his mother’s failure to inform him of these matters.
The First Respondent submitted that the Tribunal’s reasons at paragraphs 73 to 75 indicated that its adverse credibility findings regarding the Applicant’s explanations for failing to raise these claims at an earlier stage were rationally made and based on probative material and logical grounds. It was submitted that it was open to the Tribunal to express doubt about the Applicant’s claim that his mother would not have mentioned that she was moving back to the home village or that the family home had been attacked and an attempt made to take over the land.
The First Respondent pointed out the Tribunal was of the view that the Applicant would have told his mother he was applying for protection and that she would most likely have informed him of circumstances at home (such as the claimed attacks) that would increase the risk to him if he returned to Bangladesh as these would be crucial pieces of information as part of his protection visa application. The First Respondent submitted generally that this was not a case in which the Tribunal’s conclusion was not open on the evidence or where there was no logical connection between the evidence and the inferences or conclusions drawn (cf Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135] per Crennan and Bell JJ). It was contended that, in substance, this ground sought impermissible merits review.
Consideration
This ground takes issue with paragraphs 74 and 75 of the Tribunal decision, which form part of the Tribunal’s consideration of the Applicant’s claims about his mother’s return to their village in 2013 and what occurred thereafter. These paragraphs address the Applicant’s explanation for making new claims about events of 2013 which he had not told the first Tribunal about in June 2014.
Paragraphs 74 and 75 must be seen in context. Before making the findings complained of, the Tribunal described the Applicant’s claims at the first Tribunal hearing as follows:
68. …the applicant claimed that if he returns to Bangladesh his mother will want him to do something with respect to his family’s property in his village and that ‘they will try and do something and I will resist’. The applicant gave evidence that there are two pieces of family land and that they remain unoccupied. No specific oral or written claims were made that this land was under threat of occupation by Muslims or anyone else, other than the very general statement referred to. No suggestion was made that the land had been occupied or was under threat of occupation since the applicant’s mother and brother left his village. Indeed, it was specifically indicated the land was left vacant. No suggestion was made that the reason for the applicant’s mother and brother relocating to Chittagong was due to any action with respect to the family land.
The Tribunal recorded however, that documents provided to it on 13 July 2015 contained new information about the land, as follows:
69. …The statements by the applicant’s mother and others indicate that the applicant’s mother returned to the village and started to cultivate the land. They indicate that terrorists came and demanded that the land be registered with them. In 2013, the terrorists attacked the applicant’s mother and started to cultivate the land. The applicant’s mother sought an arbitration which found in her favour. The terrorists did not accept this. The terrorists told the applicant’s mother they would kill her younger son, as a result of which they left the village and now have no permanent address.
The Tribunal also referred to the fact that at the second Tribunal hearing the Applicant had confirmed that the family land had remained vacant until his mother returned to cultivate it and that this occurred a couple of months after he arrived in Australia (that is, in approximately June 2013). He also said that he had been in regular contact with his mother since shortly after arriving in Australia.
The Tribunal recorded that at the hearing it had raised with the Applicant the fact that in his 2014 evidence to the first Tribunal he had stated that his mother and brother were in Chittagong and had not mentioned his claims about his mother’s return to the village in 2013, attacks on her and attempts to take over the family land. The Tribunal asked the Applicant why he had made no mention of these matters at the first Tribunal hearing. In that context it recorded:
73. The applicant indicated that because of his blood pressure issues his mother did not want to alarm him. The Tribunal indicated to the applicant that it found this difficult to accept. At the very least, there would seem no reason why the applicant’s mother would not inform her son that she had moved back to the village. Further, the fact of attacks and an attempt to take over the land, would be crucial pieces of information for the applicant as part of his Protection visa application, which the Tribunal considers that the applicant would have told his mother about. The applicant, in response, said he did not go into details, and he was not confident in himself and he was sick.
74. In the written response provided by the applicant’s adviser following the hearing it was stated that the applicant was unwell, and his mother was always distressed when he spoke with her, thus causing a lack of clear communication. In the further written submission provided by the applicant following the hearing, the applicant indicated that his mother did know that he was seeking a Protection visa, but she did not understand what this was. She did not tell the applicant about the issues because she did not want to worry him. It was only after the previous Tribunal asked for an explanation as to what was happening with the family that the applicant asked his mother to tell him.
75. The Tribunal does not find these explanations satisfactory. As indicated, the Tribunal considers that the applicant’s mother would have informed her son that she was moving back to the home village. It also considers it most likely she would have mentioned the attacks. Given the crucial nature of the Protection visa application process to the applicant’s future, the Tribunal considers that his mother would have known, and her son would have told her, that it would be important to inform the applicant of circumstances happening at home that would increase the risk to him of returning.
The Tribunal considered the Applicant’s explanations but, for the reasons given at paragraphs 73 and 75, did not find them satisfactory. It found that the Applicant’s failure to mention these events at the first Tribunal hearing cast significant doubt on the truth of these new claims.
It also addressed the Applicant’s explanation for why the terrorists would suddenly want to occupy the family land after his mother’s return, when the land had been vacant for many years (including a number of years when his family was not in the village). It recorded that the Applicant had said that he did not know, but suggested that “perhaps” it was because they wanted to take over the land in a legitimate way. The Tribunal remained concerned as to why the terrorists would take no action to occupy the family’s vacant land for many years and only decide to do so when the Applicant’s mother started to cultivate it.
Insofar as this ground involves a contention that the Tribunal did not consider evidence consisting of the Applicant’s explanation for his mother’s failure to tell him about her return to the village and what occurred thereafter, there is no factual basis for any such assertion (cf Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 and see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67).
The Tribunal summarised the Applicant’s original claims to the first Tribunal (including at the hearing on 25 June 2014) that if he returned to Bangladesh his mother would want him to do something with respect to the family property in the village and that “they will try and do something and I will resist”. It noted that at that time the Applicant’s evidence was that the land was unoccupied and there was no suggestion it had been under threat of occupation since his mother and brother left the village or that any action with respect to the family land was the reason his mother and brother had relocated to Chittagong.
The documentation subsequently provided by the Applicant’s representative to the Tribunal as reconstituted before the hearing of 3 September 2015 contained new information concerning the family land, in particular that the Applicant’s mother had returned to the home village in 2013 and started to cultivate the family land, but that terrorists had demanded the land and had attacked her. At the second Tribunal hearing the Applicant confirmed that the family land had been vacant until his mother returned to the village several months after he arrived in Australia.
In its reasons the Tribunal referred to the documents provided to it on 13 July 2015 and to the Applicant’s oral evidence about claimed events of 2013 and the land. The Tribunal recorded that when it had asked the Applicant why he had not mentioned any of this at the first hearing, he had indicated that his mother did not want to alarm him because of his blood pressure issues.
In submissions after the Tribunal hearing the Applicant had also stated that he had been unwell, reiterated that his mother did not want to worry him, that she knew he was applying for a visa based on what happened to him but did not understand what a protection visa was and that he only asked her to tell him what was happening with the family after the first Tribunal asked him about this.
The Tribunal considered the plausibility of these explanations, as was raised at the hearing, but was of the view that the Applicant’s mother would have informed her son she was moving back to the home village and that it was most likely she would have mentioned the attacks. It expressly addressed the relevance of such information to the Applicant’s protection visa application. It was of the view that given the crucial nature of the visa application process to the Applicant’s future, his mother would have known, and her son would have told her, that it would be important to tell him of circumstances at home that would increase the risk to him.
In these circumstances the Tribunal found that the Applicant’s failure to mention these events at the first Tribunal hearing cast significant doubt upon the truth of these new claims.
It is clear that the Tribunal understood and considered the Applicant’s claims about his mother’s return to the village in 2013 and the claimed attack and threats by terrorists in an attempt to take over the land and also his explanations for not making such claims at the 2014 Tribunal hearing.
In addition to reaching a conclusion about the Applicant’s claims about events of 2013 and the family land, the Tribunal considered what the Applicant would do in relation to the land on return to Bangladesh. These findings took into account the adverse credibility finding and addressed specifically the claims about why the Applicant’s mother and brother had relocated as well as the claimed events of 2013. The Tribunal addressed all the integers of the Applicant’s claims in this respect. Further, the Tribunal’s reasons reveal an active intellectual engagement with these aspects of the Applicant’s claim.
Insofar as the Applicant’s concern is that the Tribunal did not accept his explanation for why he had not raised these claims earlier (in particular his explanation for his mother not telling him about her return to the village and attacks on her), such findings were made in the context of the Tribunal’s consideration of the Applicant’s credibility. I have borne in mind that credibility findings are not immune from review (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]). However in this case it has not been established that there was any denial of procedural fairness or failure by the Tribunal to raise dispositive issues at the hearing or other jurisdictional error. It is apparent from the transcript of the hearing that the Tribunal as reconstituted raised with the Applicant the extent of his contact with his mother, his claims about his mother and brother, their departure from the village, the family land and its use and, critically, his mother’s claimed return to the village in 2013 and the alleged attack as well as any plans for the future in relation to the land.
In addition, the Tribunal specifically raised with the Applicant the fact that at the hearing before the first Tribunal on 25 June 2014 he had said that his mother and brother were in Chittagong and had not raised the claimed events of 2013. The Tribunal stated (transcript, p.15):
TRIBUNAL: … You made no reference to any of these issues that they’ve returned, that they’ve been subject to threats or had difficulties with the land?
INTERPRETER: My mother did not tell me, she came to know later on for about one and a half years I am suffering from high blood pressure. She did not tell me just because I would stress out and I would be very fearful about her, that’s why I did not know, she did not tell me.
TRIBUNAL: I find that difficult to accept. Perhaps it’s plausible that she didn’t tell you about the attacks, although I find that surprising given that she obviously would have known you were applying for protection and this would be very, very relevant. Let me finish. But I certainly don’t see why she wouldn’t have told you that she was moving back to your village?
INTERPRETER: I did not go into details looking into my situation over here I’m not confident in myself over here, and she must have thought he’s sick and what more can I put on him and tell him about what is going on with us.
In this context the Tribunal raised its concern about the Applicant’s explanation and gave him an opportunity to comment. Later in the hearing, the Tribunal returned to the claimed events of 2013 and stated (transcript, p.18):
… I have very significant concerns about the credibility of the claims now that your mother returned to the village and was attacked and the land occupied by terrorists given the fact that you did not reveal that information in the prior Tribunal hearing. I have great scepticism that your mother would not have told you that she had moved back to the village or that these attacks and attempts to reclaim the land would happen given how important that would be to your protection claims.
In response, the Applicant again referred to his blood pressure issues and his risk of a heart attack. He speculated that his mother had not told him of the 2013 events because “as a mother she must have thought that why would she have put me on more pressure or on more stress and tell me what is happening to them. That’s the only reason I can think of” (transcript, p.18, errors in original). The Tribunal addressed this explanation.
At the hearing the Tribunal also referred to the land issue in discussing information about conflicts relating to property in Bangladesh. It remarked (as it observed in its reasons) that claims of this nature were not implausible. It informed the Applicant that it would have to consider the weight to be given to the documents he had provided, including those relating to the claimed 2013 land issues.
In this way, the Applicant was put on notice of the Tribunal’s concerns about the credibility of his claims, including the claims about his mother, attacks on her and the family land issue, as well as in relation to his explanation for not raising claims about events of 2013 at the 2014 Tribunal hearing. The Tribunal did not simply state its conclusion in this respect.
As the First Respondent submitted, the Tribunal’s findings in this respect were reasonably open to it on the material before it for the reasons it gave. There was a logical connection between the evidence and the conclusions the Tribunal drew. As stated in SZMDS at [135] per Crennan and Bell JJ:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
A logical or rational decision maker could have reached the same conclusion on the material before the Tribunal. It cannot be said there was no logical connection between the evidence as a whole and the reasons. There was probative material contradicting the Applicant’s claims. It has not been established that in addressing the Applicant’s explanations for not raising the 2013 claims earlier, the Tribunal engaged in a process of reasoning that was illogical or irrational in the sense considered in SZMDS. The “extreme” illogicality or irrationality described in SZRKT at [148] has not been established. This is not a case in which only one conclusion was open on the evidence. The Tribunal’s reasons contain an evident and intelligible justification for the findings about events of 2013 and for the ultimate conclusion.
Legal unreasonableness has not been established.
Ground 1 is not made out.
Ground 2
Ground 2 in the application is as follows (errors in original):
2. That the member erred in law when he relyed on the US Ambassedor to Bangladesh report of 2013 that assesses that violence perpretated against religious minorities in Bangladesh is seldom if ever about religion, but primarily the work of cheap land grabbers. And did not consider my answer to this.
This ground takes issue with the Tribunal’s findings about the Applicant’s claims to fear harm on the basis of being a Buddhist (including being a Barua Buddhist and a monk).
The Applicant did not clarify his concerns in relation to the cited remarks of the US Ambassador to Bangladesh, beyond the pleaded claim that the Tribunal did not consider his “answer” to this information.
The First Respondent submitted that this ground also sought merits review. It was pointed out that in its decision the Tribunal indicated at paragraph 101 that at the hearing it had provided the Applicant with a summary of its assessment of the independent information before it (including, but not limited to, the 2013 report quoting the United States Ambassador to Bangladesh). The Tribunal also noted (at paragraphs 103 to 107) that it had expressly considered the Applicant’s responses to the independent information both orally and in writing (which it set out), including referring to his disagreement with the relevance of the intentions of politicians and land grabbers. The First Respondent submitted, however, that the choice and assessment of the weight to be given to independent information was a matter for the Tribunal to determine.
As indicated, the First Respondent also submitted generally that this was not a case in which the Tribunal’s decision or reasoning was illogical in the sense considered in SZMDS at [135] and that it could not be said that the decision was not open on the evidence or that there was no logical connection between the evidence and the inferences or conclusions drawn.
Consideration
The transcript of the Tribunal hearing reveals that at the hearing the Tribunal described country information before it, including a 2013 assessment by the US Ambassador to Bangladesh. The Ambassador was recorded in a 2013 news article as having made the assessment (cited in the Tribunal decision at paragraph 101) that violence perpetuated against religious minorities in Bangladesh was “seldom, if ever, about religion” and was primarily the work of “cheap politicians and greedy land grabbers” who manufactured “friction in the guise of religion for their own benefit”. The Tribunal put the Ambassador’s assessment to the Applicant at the hearing (transcript, p.20).
However, the Tribunal also informed the Applicant of its assessment of the independent evidence about the risk of harm for Buddhists in Bangladesh and its “thinking” about whether there was a general risk of harm on the basis of being a Buddhist (transcript, pp.19 to 21). It stated that it would have regard to a recent DFAT assessment which it also summarised and put to the Applicant for comment, as recorded in its reasons at paragraphs 104 to 105.
It is apparent that in its reasons the Tribunal had regard to the DFAT assessment as to the risk of religious and political violence against Buddhists in considering the Applicant’s claims. The fact the Tribunal put to the Applicant the report of the US Ambassador’s 2013 remarks does not demonstrate that it relied solely on this information, insofar as this may be intended to be suggested in this ground.
Moreover, as the Tribunal made no finding about the motivation of those said to perpetrate violence against religious minorities, it was unnecessary for the Tribunal to respond directly to the Applicant’s submission that greedy people used the fact that minorities were identifiably different and practised a different religion to facilitate stealing land and fermenting prejudice. Rather, in its findings about the risk of harm to the Applicant because of his religion, the Tribunal preferred its assessment of the weight of the independent information in not being satisfied that there was “systemic mistreatment of Buddhists, including Buddhist monks, in Bangladesh that would lead to a real chance of the applicant facing serious harm on the basis of his religion”. It was also of the view that the Applicant’s claim that the situation may change if a different political party was in power was speculative and did not create a real risk of serious harm to him in the reasonably foreseeable future.
Further, in making these findings the Tribunal had regard to the Applicant’s own circumstances. It found nothing in his circumstances (that it accepted) would change its assessment. As indicated, it took into account in that context that on its findings the Applicant had suffered no difficulties due to his religion following the 2002 incident (until his 2008 departure) and had been able to practise his religion in at least two Buddhist monasteries without incident.
It has not been established that the Tribunal erred in having regard to the report of the US Ambassador’s remarks as part of all the country information before it, or in the manner in which it preferred its assessment of the weight of country information to the views expressed by the Applicant.
As the First Respondent submitted, the assessment of and weight to be given to country information was for the Tribunal. While conclusions based on country information are not immune from judicial review, this aspect of the Tribunal’s conclusions was reasonably open to it on the material before it and no jurisdictional error has been established in this respect.
Ground 2 is not made out.
Other issues
In oral submissions the Applicant also expressed concern about whether he had been provided with a copy of the country information discussed at the Tribunal hearing. It emerged that this concern related to the 2014 DFAT Report. The Tribunal stated (at paragraph 102 of its decision) that in the hearing it had given “the applicant and his adviser” a copy of the DFAT 2014 Country Report on Bangladesh. The Applicant told the court he did not know if he had received this report, so did not know what was in it, but had not asked his adviser if he had received a copy of the report.
There is no evidence that the Tribunal failed to give a copy of the 2014 DFAT Report to the Applicant’s adviser. It is clear that the Tribunal summarised DFAT’s assessment and gave the Applicant the opportunity to comment at the hearing and to provide post-hearing written submissions on the country information and other matters. In any event, there was no obligation on the Tribunal to provide a copy of country information to the Applicant under s.425 or s.424A of the Act. No jurisdictional error is apparent in this respect.
In its reasons the Tribunal addressed the submissions and the independent information the Applicant provided (including to the delegate and the first Tribunal).
Insofar as the Applicant’s concern was in relation to any reliance by the Tribunal on the cited remarks of the US Ambassador to Bangladesh which are the subject of ground 2, those remarks (and the reiteration of those remarks in an August 2013 news article) were referred to in the delegate’s decision of 29 November 2013 and in the Tribunal hearing. The Applicant was put on notice of such information and had the opportunity to comment or respond.
At the hearing before this court the Applicant tendered media reports and country information. He told the court that he did not know whether any of this information had been included in the country information before the Tribunal. It appears that he seeks to rely on this information in relation to the situation in Bangladesh.
For the most part the material handed up at the hearing post-dates the Tribunal decision. If the Applicant’s contention is that circumstances have changed since the Tribunal decision, this is a matter he may raise with the Minister for Immigration, but it does not establish that the Tribunal fell into jurisdictional error in its consideration of the country information before it. There is no evidence that it failed to consider or to reach its state of satisfaction on the basis of current information about the situation in Bangladesh at the time of the decision (see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431).
The fact that it had regard to the most recent DFAT Report is to the contrary.
Moreover, as the First Respondent submitted, as there is no evidence that the tendered material was before the Tribunal it could not be said to have fallen into error by failing to consider it.
Nonetheless I have considered the fact that one of the articles tendered is dated 1 February 2013. It refers to clashes in Ramu in Bangladesh. However, the Tribunal was aware of these events. It referred in its summary of the Applicant’s claims to information he provided concerning violence in Ramu in 2012 in a series of attacks on monasteries, shrines and the houses of Buddhists. The Tribunal considered this event, but found that the violence was localised and not sustained. It also considered the Applicant’s claim that he participated in a demonstration in Thailand in relation to the events in Ramu (although there was no suggestion he claimed to fear harm in Bangladesh because of such participation).
The tendered material does not suggest or establish jurisdictional error on the part of the Tribunal.
The Applicant also submitted that the Tribunal had failed to “consider” his mother’s statement. It is apparent that this is a reference to the translated statement provided to the Tribunal on 13 July 2015 (with other documents). The statement was said to be by the Applicant’s mother. It described events of 2002, the fact she sent her son to Anwara monastery, his return visit in 2007 as well as claimed events of 2013 after she and her younger son returned to the village.
The Tribunal summarised this material as follows:
A copy of the original and a translated statement provided by the applicant’s mother [mother’s name]. It refers to the events leading to the death of her husband in 2002. It indicates that after her husband’s death, the applicant maintained protest with other leaders of the village. It indicates that terrorists became overexcited and came to the home and threatened to kill the family. As a result, the applicant’s mother sent her son to a monastery. It refers to the applicant visiting in 2007 due to his mother’s illness. It indicates that the terrorists asked the younger son about his brother and for his non-answer they threatened to kill and kidnap him. As a result, the applicant’s mother told her son to escape to Chittagong. It indicates that she has also been living underground. It indicates that as her son had gone abroad she thought the terrorists had forgotten all matters by this time, and so she returned to the village with her younger son. She started to cultivate the land. Terrorists came and demanded that the land be registered to them. In 2013, they attacked [the Applicant’s mother] and her workers with a sharp knife and arms. The terrorists started to cultivate the land. [The Applicant’s mother] sought arbitration which found in her favour. The terrorists did not accept this. She went to the ‘PS’ and filed a case. The chairman refused to issue the order sheet from the local Court. The terrorists told [the Applicant’s mother] that they would kill her younger son. As a result, [the Applicant’s mother] ran away with her younger son and has no permanent address.
The Tribunal addressed the claims made in this statement in its reasons. It accepted the claims (made by the Applicant and, to a limited extent, by his mother) in relation to events of 2002.
In considering the Applicant’s claims about his mother’s return to the village in 2013 it also referred to this statement and to the claims therein. However, after addressing significant concerns about the credibility of the Applicant’s claims about any adverse interest in him after 2007 and the family land claim, including because of his failure to make such claims about events of 2013 in the first Tribunal hearing held in 2014, and as to why terrorists would take no action to occupy the family’s vacant land for many years and only decide to do so when his mother started to cultivate it (as discussed at [46]-[70] above), the Tribunal rejected the truth of the claims about a takeover of the family land and associated attacks on the family. In this context it stated:
87. While the Tribunal accepts that independent evidence indicates that land disputes are a not uncommon source of tension and violence in Bangladesh, it is not satisfied that the applicant has been targeted on an ongoing basis as result of the land dispute the Tribunal accepts occurred in 2002. Whilst the claims of the family land being taken over in 2013 are not implausible, the Tribunal does not think, for the reasons discussed, that that applicant is credible in these claims.
88. The Tribunal has taken into account the supporting references from various monasteries and groups provided by the applicant to the Department. In particular it notes the reference from what would appear to be the Anwara temple dated 22 September 2013 which indicates that in August 2002 the applicant’s mother requested the temple to give the applicant shelter because he had been oppressed severely in his native village by Muslim terrorists. The letter indicates that the terrorists were informed about him, so it was impossible for him to stay at the temple any longer and he was sent to Chittagong. A reference is provided from what would appear to be the temple in Chittagong stating that the applicant took shelter at this temple, but was advised that he should leave the country.
89. The Tribunal is not satisfied that these and other references provided by the applicant, which attest to him being pursued by Muslim fundamentalists, ameliorate the credibility concerns identified with the applicant’s evidence.
90. The Tribunal is also not satisfied that the statements from the applicant’s mother, the village official and the Chief Abbott attesting to the issues relating to the applicant’s family land in 2013 ameliorate credibility concerns outlined.
91. The Tribunal considers that these various statements have been provided as a means to support the applicant’s claim for a Protection visa rather than reflecting the truth of the situation.
The Tribunal did not fail to consider or to have regard to the statement from the Applicant’s mother (or the other supporting documents). Its reasons reveal an active intellectual engagement with the mother’s statement.
The weight to be accorded to evidence is a matter for the Tribunal, although I bear in mind that credibility findings are not immune from review (see CQG15 at [36]-[38]). The Applicant has not specifically challenged the basis on which the Tribunal made adverse credibility findings and there is nothing in the material before the court to indicate any failure by the Tribunal to afford procedural fairness, any extreme illogicality or unreasonableness or other jurisdictional error in this respect.
In circumstances where the Tribunal identified and had regard to a range of inconsistencies and implausibilities in the Applicant’s evidence, as well as the lack of a satisfactory explanation for his failure to mention claimed events of 2013 (including his mother returning to their home village) at the 2014 Tribunal hearing, it was reasonably open to the Tribunal to find that his mother’s statement (and other statements) did not ameliorate its credibility concerns and had been provided to support the Applicant’s claims for protection, rather than reflecting the truth of the situation in 2013.
It has not been established that the Tribunal failed to consider the statement by the Applicant’s mother. None of the issues raised by the Applicant establish jurisdictional error.
The s.438 certificate
In submissions, the First Respondent also addressed the fact that a certificate was issued by the Department under s.438 of the Act. The Applicant did not address this issue.
The certificate, a copy of which is in a Supplementary Courtbook, is dated 13 May 2015. It certifies that s.438(1)(a) of the Act applies to information in specified folios in the departmental file on the basis that disclosure of this information would be contrary to the public interest because the relevant folios “contain information relating to an internal working document and business affairs”.
Copies of the documents the subject of the certificate are also in the Supplementary Courtbook. They consist of a departmental document described as a “Matters Details Summary” which records the orders made by this court on 5 May 2015 setting aside the first Tribunal decision and remitting the matter for reconsideration; an internal departmental email dated 6 May 2015 marked “Sensitive:Legal” suggesting that compliance action may not be appropriate and that the matter would be referred to the Tribunal for reconsideration; an email from a lawyer at one of the Department’s external law firms to the Department summarising the 2015 judgment and orders and suggesting the court’s reasons did not extend or establish any new principle and that the matter could be confined to the facts, but asking if there were nonetheless any instructions to seek counsel’s advice on appeal prosects.
The First Respondent accepted that the s.438 certificate and notification to the Tribunal was invalid for the reasons given by Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [37].
It is not in dispute that the Tribunal did not disclose the existence of the certificate or any of the documents subject to it to the Applicant. However, as the First Respondent submitted, the documents subject to the certificate contain nothing adverse to the Applicant or relevant or significant to the Tribunal’s review. As in BEG15 v Minister for Immigration & Anor [2016] FCCA 2778; (2016) 315 FLR 196 (upheld on appeal in BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36) and now see Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3), the Applicant would have known the substance of the information in the documents the subject of the certificate, insofar as they summarised and confirmed the outcome of his earlier judicial review proceedings. The information in the email from the Department’s lawyer was not relevant to the Tribunal’s decision, except insofar as the Tribunal needed to avoid a repetition of the same error.
Moreover this is not a case in which it can be inferred that the Tribunal “acted on” the certificate in an impermissible way (cf MZAFZ at [40]). The Tribunal did not refer to the documents the subject of the certificate in its decision. Nor is there anything to indicate that the certificate or the information in the documents would have provided any logical basis for any aspect of the Tribunal’s decision. As in BEG15, the Tribunal undertook a full re-hearing of the Applicant’s matter and arrived at its own independent conclusion. It considered his protection claims. Relevant to the basis for the remittal of 5 May 2015, the Tribunal understood and considered the Applicant’s new, and different, claims in relation to the family land. As the First Respondent submitted, there is no evidence of any practical unfairness.
In these circumstances, I am satisfied that there is no material issue in these proceedings arising from the non-disclosure of the s.438 certificate or the documents to which it relates. The contents of the documents were either known to the Applicant or were entirely uncontroversial and neutral to the conduct of the review before the present Tribunal. Despite the Tribunal’s failure to disclose the certificate and the documents, the Applicant was not denied the opportunity to give evidence or make arguments in relation to matters relevant to the proceeding before the Tribunal. No practical unfairness is demonstrated. The documents had no bearing on the Tribunal decision. There is no basis to infer that the Tribunal acted upon the certificate in some impermissible way. I cannot see that knowledge of the invalid certificate or the documents in question could have made any difference to the outcome of the review. The Applicant was not deprived of the opportunity of a successful outcome. In these circumstances, I am not satisfied that the Tribunal fell into jurisdictional error (see BEG15, and now see SZMTA).
Accordingly, the application should be dismissed.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Date: 9 April 2019
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