SZUSY v Minister for Immigration
[2015] FCCA 1138
•5 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUSY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1138 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal applied the wrong test under s.36(2)(aa) of the Migration Act 1958 – allegation that the Tribunal failed to deal with the full integers of the applicant’s claims – Tribunal failed to consider applicant’s claim that he would face harm in Bangladesh as a member of a land owning family – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 414, 476 |
| SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 |
| Applicant: | SZUSY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1974 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 17 March 2015 |
| Date of Last Submission: | 24 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P.W. Bodisco |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr B. O’Donnell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the Refugee Review Tribunal quashing the decision of the Refugee Review Tribunal dated 25 June 2014.
A writ of mandamus issue directed to the Refugee Review Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 29 November 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1974 of 2014
| SZUSY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under s.476 of the Migration Act 1958 (“Act”) for judicial review of a decision of the second respondent (“Tribunal”) dated 25 June 2014. The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a protection visa.
The applicant is a citizen of Bangladesh who claims to fear returning to that country as he would be targeted by Muslims who had killed his father in 2002 as a result of a land dispute over a local Buddhist graveyard. The Tribunal assessed the applicant’s claims both in respect of the land dispute as well as on the basis that the applicant might be harmed as a Buddhist and found that the applicant did not satisfy the criteria for the grant of a protection visa.
The applicant argues that the Tribunal did not properly consider one of the criteria for a protection visa, namely, that found in s.36(2)(aa) of the Act, and that it also failed to consider whether the applicant might face harm upon return to Bangladesh for reason of being a landowner. The applicant had, until the hearing of this matter, presented the second of these grounds on the basis that the claim to be a landowner had arisen implicitly on the material before the Tribunal. However, at the hearing, he argued that it arose expressly from the evidence that he gave before the Tribunal. In light of the late change, I allowed the Minister time to file further written submissions in respect of the second ground.
For the reasons that follow, I find that the second ground is made out and the applicant is entitled to the relief claimed.
Background
The applicant arrived in Australia on 26 April 2013 carrying a fraudulent Indian passport and as the holder of a temporary business visa. On 23 May 2013 he lodged an application for a protection visa claiming to fear harm for two reasons: first, for his religious belief as a Buddhist and secondly, in connection with his involvement in protests led by his father in January 2002 against local BNP leaders who were seeking to take the local Buddhist graveyard for the purposes of business activities.
The applicant claimed that his father died as result of an injury sustained in an attack by a local BNP leader and his gang in January 2002 and that the attackers ultimately occupied the crematorium and established a market there in 2006. The applicant left the area in August 2003 and was ordained as a Buddhist monk in November 2005. He claimed that he had been in regular contact with local community elders and his opponents had never stopped looking for him. He eventually left Bangladesh and travelled to Calcutta where he stayed in a temple before obtaining a false passport and travelling to Thailand in 2011. After returning to India in January 2013, he obtained a visa to travel to Australia.
On 29 November 2013 a delegate of the Minister decided to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.
In written submissions to the Tribunal the applicant claimed that minorities including Buddhists were being persecuted all over Bangladesh by fundamentalist Muslims. He referred the Tribunal to an incident in 2012 in which Buddhists had been attacked by Muslim mobs as a consequence of the alleged desecration of a Koran. In a further written submission dated 11 June 2014 the applicant repeated his claim that Buddhists were currently the victims of harm by Muslim fundamentalists and BNP and Jamaat-e-Islami activists.
The applicant attended a hearing on 18 June 2014 to give evidence and make submissions, relevant portions of which will be set out in due course. On 25 June 2014 the Tribunal handed down its decision to affirm the decision of the delegate to refuse to grant the applicant a protection visa.
Tribunal’s decision
The Tribunal accepted that the applicant was a Buddhist and that he and his father had been attacked in January 2002 by people associated with the BNP and Jamaat-e-Islami as a result of his and his father’s involvement in protests against the Muslim occupation of the Buddhist graveyard. However, it found that the applicant’s father was the sole target of the attack in January 2002 and that the leaders were not interested in the applicant himself. Further, it found that, in light of the fact that the Muslims had obtained what they were after and the locals no longer objected to the occupation of the graveyard, the Muslims no longer had any interest in any of the Buddhist protesters or the applicant.
The Tribunal accepted that the applicant would have been traumatised by the attack on him and his father and accepted that he had left his village because of his fear of the local Muslims but did not accept that his departure was because of him receiving threats from them. Further, the Tribunal found that the applicant’s claims that the Muslims were still interested in him when he returned to his home village in 2007 were not credible. Rather, it found that he would not have been threatened when he returned there and that the local Muslims had not pursued him. It also found that the applicant’s decision to go to India was unrelated to any threats from Muslims in his local area.
In light of those findings the Tribunal found that there was no real chance that the applicant would be harmed by any Muslims from his local area if he returned there at the time of the Tribunal’s decision or in the recent reasonably foreseeable future.
The Tribunal then turned to consider the applicant’s claims relating to Buddhists in general. It accepted, as noted, that the applicant was a Buddhist and that if he were to return to Bangladesh he would want to resume living there as a full-time monk. It considered the country information concerning the treatment of Buddhists in Bangladesh and in particular the incident referred to in the applicant’s written submissions. In respect of that, the Tribunal found that there had been an unprecedented, widely-reported and short-lived spate of anti-Buddhist violence and that the violence was localised and not sustained.
In light of all the country information as well is the applicant’s evidence about his own circumstances as a Buddhist in Bangladesh the Tribunal was not satisfied that there was a real chance that he would be persecuted either because of his Buddhist religion or his Barua ethnicity.
For those reasons the Tribunal concluded that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Act.
The Tribunal next considered the criterion in s.36(2)(aa). In this respect it stated:
[59]For the reasons given above the Tribunal has found that there is no real chance that the applicant would be subjected to harm as a result of the land dispute over the graveyard in his local area. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well – founded fear’ in the Refugee Convention definition. Therefore for the same reasons the Tribunal finds that there is no real risk that the applicant will be harmed as a result of the land dispute over the graveyard in his local area.
[60]As discussed above the Tribunal was not satisfied on the basis of the independent country information before it and the evidence of his and his family’s situation that the applicant would be targeted as a Barua Buddhist. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that he will suffer significant harm as a Barua Buddhist.
[61]As discussed above, the Tribunal is not satisfied that the applicant has a political profile that would bring him to the adverse attention of the authorities or fundamentalist Muslims in Bangladesh or that he has any desire to be involved in political activities if he was to return to Bangladesh. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm because of his political activities.
(References omitted).
For all of those reasons the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate to refuse to grant the applicant that visa.
Consideration
There are two grounds in the application: first that the Tribunal applied the wrong test under s.36(2)(aa) of the Act; and secondly, that the Tribunal failed to deal with the full integers of the applicant’s claims.
Ground 1
In his written submissions the applicant explained that the first ground was based on the contention that the Tribunal erred by drawing into its consideration of the complementary protection provision findings that violence was perpetuated by “criminal intent, personal conflict, property disputes or some combination thereof” as opposed to conflict motivated by religion. He explained that the second ground was that the Tribunal erred by accepting on the one hand that ongoing disputes were motivated by “land grabs” and targeting minorities and also that the applicant had land in Bangladesh but, on the other hand not considering whether those matters might support a real risk of significant harm.
The Minister submitted that the findings made by the Tribunal in connection with the criterion under s.36(2)(a) of the Act were correctly applied by the Tribunal in connection with the complementary protection regime. He also submitted that any claim arising out of the ownership of land by the applicant was conclusively dealt with by the Tribunal’s finding that the Muslims and the applicant’s home area had no further interest in the applicant or his family.
The relevant provisions of the Act are as follows:
36 Protection visas
(1)There is a class of visas to be known as protection visas.
Note: See also Subdivision AL.
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
…
(2A) A non‑citizen will suffer significant harm if:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non‑citizen; or
(c)the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Section 5(1) of the Act provides that:
significant harm means harm of a kind mentioned in s 36(2A).
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The passages in the Tribunal’s reasons relied upon by the applicant in respect of the first ground are:
[46]Buddhists make up less than 1 per cent of Bangladesh’s population of more than 150 million. As discussed with the applicant at the hearing, the country information suggests that Bangladesh has a generally poor human rights record but not that Barua Buddhists are targeted in a systematic and widespread manner. Many attacks based on religion in Bangladesh have been against Hindus (as submitted in the reports provided by the applicant); however, there have been occasions when Buddhists have been targeted.
…
[52]As referred to above, the United States Department of State (USDOS) International Religious Freedom (IRF) report 2012 for Bangladesh states that “[v]iolence directed against members of minority religious groups continued to result in the loss of lives and property, but it was difficult to determine whether the true motives were religious animosity, criminal intent, personal conflict, property disputes, or some combination thereof”. The United States Ambassador to Bangladesh, Dan Mozena, is clear in his assessment of the situation however, claiming that violence perpetrated against religious minorities in Bangladesh is “seldom, if ever, about religion”, but is primarily the work of “cheap politicians and greedy land grabbers” who manufacture “friction in the guise of religion to their own benefit”. The Tribunal does not accept that isolated instances of violence against Buddhists in Bangladesh, including the violence in Ramu in 2012, indicate that Barua Buddhists face a real chance of persecution in Bangladesh.
The point made by the applicant is that the Tribunal’s conclusion in respect of the risk of harm in the form persecution was based, at least partially, on evidence that suggested that most of the harm that is inflicted upon Buddhists in Bangladesh is not for reason of their religion. The Tribunal then imported that finding, without more, into its consideration of the criterion in s.36(2)(aa). This was an error, so it was argued, because the complementary protection criterion does not contain any necessary element of motivation for a Convention-related reason.
In my view, the Tribunal did not fall into the error asserted by the applicant. While the finding at [60] addresses the potential harm faced by the applicant “as a Barua Buddhist” and that, in addition to the material referred to at [52], suggests that the Tribunal might have imported notions of motivation into the test under s.36(2)(aa), the Tribunal’s reasons must be understood by reference to the claims actually made by the applicant. Subject to what follows in relation to the second ground, the applicant never made a claim that he faced any harm for reasons other than those connected to the protest in 2002 and his religion. For that reason, when the Tribunal came to consider whether the applicant satisfied the criterion in the complementary protection provision, all that it was required to do was to assess that criterion by reference to the material before it including the particular claims made by the applicant. That is all that it was doing when it made findings addressed to the applicant’s religion at [60].
Further, on a fair reading of the Tribunal’s reasons, the reason for which the Tribunal concluded that the applicant did not meet the definition of a refugee in the Refugee Convention in connection with his religion was simply that the country information before it together with the applicant’s own evidence was that attacks on Buddhists were simply “isolated instances of violence”. Thus, there was no incorrect application of that test for complementary protection. Rather, the Tribunal took the view, which was open to it, that its findings of fact in connection with the criterion in s.36(2)(a), dealt conclusively with the criterion in s.36(2)(aa): see SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 at [56].
Ground 2
The second ground, relies upon the assertion that the applicant claimed that he would face harm in Bangladesh as the member of a land owning family. The assertion was initially based upon one passage in the transcript of the Tribunal’s hearing that took place on 18 June 2014, namely:
[Tribunal]: Does your family own any property?
[Applicant]: We have but nobody goes there to look after that property.
[Tribunal]:So what’s happening with that property at the moment? Is it used to anything?
[Applicant]: Nobody using it. The house is opened and the land is vacant.
Contrary to the applicant’s written submission, there was no evidence that the land was used for agricultural purposes. As the passage above shows, the evidence was that nobody was using the land.
At the hearing, the applicant relied on the following extract from the transcript:
[Tribunal]:Why would you be required to return to your home village though? You no longer have immediate family there and you have been living away from there since 2003.
[Applicant]: Two points I am making here. One is that I do not have any educational qualifications so that I can do something in Bangladesh. Also, if I go there, it is natural tradition of our country that your property runs generation after generation. So naturally I will try to go and do something with our property at our village now. My mother will also want if I go there that I do something with our property there. So if I want to do something with our property, they will come. They will try to do something and I will resist.
If I went back to my country, I cannot live like a dog, always in a scary condition like a dog. A man cannot live in such a scary condition. I don’t know what my mother and brother will do. When I think about them I become at a loss. I don’t know how my brother copes. That is very hard. Along with study he does some private tuition to earn some money. I cannot think of anything. What can I do if I go back to Bangladesh in the present situation?
(Emphasis added)
The Minister conceded at the hearing that the emphasised words in this passage constituted an explicit claim that, if the applicant were to return to his home village, he would attempt to work his family’s other parcel of land and that this would attract the adverse attention of the Muslim group who killed his father and took his family’s land in 2002. He also conceded that the ground was not dealt with explicitly in the Tribunal’s reasons. However, he relied on WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 to argue that it was not necessary for the Tribunal to have done so because the claim had been dealt with at a greater level of generality. The particular passage from that decision relied on by the Minister was:
[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 that is 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.
The first proposition in the last sentence derives from a statement to similar effect in the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 353 [91].
The Minister points to two findings which, he says, deal with the claim concerning land ownership. The first is that the Tribunal accepted, at [42], that the applicant would want to resume living as a full time monk and the second is the finding, at [41], that the Muslim group had achieved its goal and so was no longer interested in the family. In my view, neither of those findings dealt with the landowner claim.
The difficulty with the first finding is that, as the Minister argues, while life as a full-time monk may be inconsistent with living on and developing the family’s second plot in the village, the Tribunal did not resolve that conflict. Indeed, it did not make any finding to the effect that the applicant would resume living as a monk. If it had, that may well have overcome any inference that the Tribunal did not deal with the possibility that the applicant would return to his village and take up his filial duties. Rather, its reasons show that it only considered the possibility that the applicant would become a monk. There is nothing wrong with dealing with the issue in that way; however, it is insufficient to do that without also dealing with the possibility that the applicant would return to the village, either by rejecting it as inconsistent with the desire to become a monk (or for some other reason), or by considering whether he might face harm if he were to return to the village as claimed.
The second finding does not deal with the landowner claim at all. Indeed, once it is accepted that the landowner claim was made, it strengthens the inference that the Tribunal simply overlooked it. The point made by the Tribunal at [41] only dealt with the status quo, that is, how things had been since the Muslim group had taken possession of the cemetery in the village. The landowner claim was to the effect that things might change in accordance with the traditions of the village.
For those reasons, the second ground succeeds.
Conclusion
The applicant is entitled to the issue of constitutional writs and to an order for costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 5 May 2015
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