SZUUZ v Minister for Immigration

[2015] FCCA 419

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 419

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (Class XA) visa – Whether the Tribunal adopted an approach that was too narrow – Application dismissed.

Legislation:  
Migration Act 1958

Applicant: SZUUZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2070 of 2014

Judgment of: Judge Street

Hearing date: 23 February 2015

Date of Last Submission: 23 February 2015

Delivered at: Sydney

Delivered on: 23 February 2015

REPRESENTATION

Counsel for the Applicant:  Mr B Zipser of Counsel and Mr Symons of Counsel

Counsel for the Respondent: Ms S Given

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2070 of 2014

SZUUZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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.  The applicant is seeking to challenge a decision of the Tribunal delivered on 25 June 2014 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.  The ground of the application is as follows:

   1. The Tribunal accepted that the applicant, in addition to being a practising Buddhist, “has published three books in relation to Buddhism”: see paragraph 37 of Tribunal’s decision. The Tribunal also accepted that there were occasional instances of violence against Buddhists in Bangladesh. The Tribunal should have considered whether the applicant faced a heightened risk of harm because he was an author of religious tests. The Tribunal failed to consider this issue, which is a jurisdictional error.

2. At the commencement of the hearing Counsel’s attention was drawn to the fact that the Tribunal identifies on three occasions, in paras.50 and 53, a reference to the publication of the religious works apparently by the applicant.  In light of those references it could hardly be the case that the Tribunal had failed to have regard to, or consider, the applicant’s role in relation to those publications in the context of coming to the conclusion that it was satisfied that the applicant was not a person to whom Australia owed any protection obligation under the Refugees Convention and, in essence, that the applicant was not a person who had a well-founded fear of persecution for a Convention reason. 

3. Mr Zipser skilfully sought to advance criticism inherent within what was said to be para.50, that the use of the concept targeted emanating initially in para.42 of the Tribunal’s reasons, and following through into its use in para.50, suggested that the Tribunal had adopted too narrow an approach, and not taken into account something that may not have been a well-founded fear of persecution for a Convention reason, because it was of broader ilk than the concept of targeted. 

4. I am satisfied that the Tribunal using the term “targeted” was clearly addressing the claim identified by the applicant for his alleged fear of persecution.  The Tribunal found the applicant to be a national of Bangladesh, and that Bangladesh was the country of reference for the purpose of the application of the Act, and the applicant had provided a statutory declaration in relation to his alleged fear of persecution, which was by reason of him being a Buddhist, with Buddhist religious beliefs, and having circulated his writings in the community. 

5. In the statutory declaration advancing the alleged claims of the applicant, the applicant himself used the language “targeted” specifically when he said:

   I was targeted by Muslim fundamentalists.

6. I am satisfied that the Tribunal, in using the language “targeted”, was referring to the nature of the claim identified by the applicant, which it was bound under the statutory criteria to address, and that the Tribunal had regard to the breadth of that claim, both by reason of the applicant being a Buddhist monk, and by reason of his religious publications, as well as by reason of the role he has played as a Buddhist, and as an individual.  It is not appropriate to read the Tribunal’s reasons with an eye to error, and I am satisfied that the adverse findings by the Tribunal were clearly open to the Tribunal. 

7. This is a case where the Tribunal has made a very detailed analysis of the applicant’s evidence in relation to his credibility, partly because of the conduct of the applicant when first applying for protection in advancing false information as to his name and date of birth, and providing false documents to the department. 

8. The false documents purported to suggest that the applicant was of Indian nationality and, in fact, the delegate so found.  The delegate had also identified grave concerns as to the credibility of the applicant.  Of course, the provision of false information is not, of itself, determinative either of the true status of the applicant or, indeed, whether there are well-founded fears of persecution for a Convention reason.  

9. The Tribunal has carefully set out in its reasons the findings it has made, the basis for those findings and the reasons why the Tribunal was satisfied that the applicant is a Bangladeshi citizen from a particular location.

10. But the Tribunal did express its concerns as to the applicant’s propounding of documents that were not genuine and, in evaluating the credibility issues relating to the applicant’s claim, the Tribunal, in para.13, said:

    13. The Tribunal did not find the applicant to be a credible witness.  He appeared at times to be evasive in his responses, to be changing and fabricating his evidence, and hesitant in providing answers to the Tribunal’s questions.  These concerns, discussed below, are so significant that the Tribunal is not satisfied the applicant has been truthful in relation to his identity, his age, and his background.  These concerns are discussed below.

    14. …The Tribunal did not find the applicant’s evidence in relation to his true name to be consistent or persuasive and it is not satisfied that he has been truthful in relation to his identity. 

    15. ...The Tribunal is not satisfied that the birth certificate is a genuine document, or that the applicant’s name and the date of birth as provided are as provided in the birth certificate. 

11. The Tribunal, nonetheless, was prepared to resolve the issue of the Bangladeshi national identification card as a genuine document in favour of the applicant.  The Tribunal, as was open to it, found that the applicant authored the books under his name, but was not satisfied the books are evidence of his true identity. 

12. The Tribunal did not find persuasive the applicant’s claims in relation to his education, and the classes he attended.  The Tribunal, as was open to it, found that one of the documents provided late to the Tribunal was not a genuine document, that this reflected poorly on the applicant’s credibility, and also that the applicant was not truthful in relation to his identity and background.  The document made reference to a number of the documents provided by the applicant to the Tribunal in support of his claims, and the Tribunal expressed its concerns at the genuineness of the documents, and how that reflected poorly on the applicant’s credibility. 

13. The Tribunal turned to the claims of the applicant about his brother being kidnapped, and that Muslims attempted to force him to convert.  The Tribunal identified the applicant’s accounts as suffering from a number of inconsistencies in a number of material ways that were carefully identified, and the Tribunal did not accept the applicant’s assertions in relation to his brother. 

14. The Tribunal turned to an allegation that the applicant had been assaulted by Muslims in his local temple and, again, the Tribunal said that the applicant’s evidence was unsatisfactory, inconsistent and unpersuasive.  Materially, the Tribunal found that it was not satisfied the applicant was attacked, threatened or targeted by fundamental Muslims at his home, or that he was forced to flee West Goa as a result. 

15. The applicant made certain allegations about the chief abbot of his alleged local temple. Whilst the Tribunal found an attack occurred on the abbot, the Tribunal was not satisfied that the chief abbot was attacked because of the applicant. The Tribunal did not find the applicant to be a credible witness.  The Tribunal was not satisfied that he was targeted in his home, and was not satisfied that the chief abbot was injured for not releasing details of the applicant’s whereabouts.

16. The Tribunal noted the inconsistent evidence in relation to the attack concerning the abbot, and found that it was not satisfied that the applicant had any personal connection with that attack.  In relation to the claims relating to Buddhists in Bangladesh, the Tribunal carefully identified the country information in that regard which was put to the applicant.  Materially, the Tribunal found that it did not accept that isolated incidences 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.

17. The Tribunal continued:

    49. …the Tribunal is not satisfied on the basis of the information before it that there is a real chance that the applicant will be persecuted solely because of his Buddhist religion or his Barua ethnicity.

18. It is clear that the Tribunal turned its attention to evaluate the claim of alleged persecution for a convention reason by the applicant including on a narrower basis that it was suggested by Mr Zipser was an alleged failure by the Tribunal.  I am satisfied the Tribunal made no error of the kind advanced. It was open to the Tribunal to make the adverse finding in relation to the absence of the applicant facing any real chance of persecution because of his Buddhist religion or Barua ethnicity, or because of being a Buddhist monk or because of his religious publications. Those findings by the Tribunal clearly reflect an evident and intelligible justification.  The Tribunal continued:

    50. The Tribunal has considered whether the applicant may be targeted as a monk or as an author of religious texts. However there is no evidence before the Tribunal to suggest that either monks or Buddhist religious leaders, authors or teachers are being targeted in any systematic manner. As referred to above the instances of violence against Buddhists in Bangladesh can often be attributed to political reasons, person conflict, property and land disputes or criminal intent. Therefore the Tribunal is not satisfied that the applicant would be targeted as a Buddhist mong or because of his religious publications.

    51. Having considered the applicant’s claims individually and cumulatively and for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s. 36(2)(a).

    52. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

    53. For the reasons given above the Tribunal is not satisfied that the applicant has been truthful in relation to his claims. It is not satisfied that he has been attacked, threatened or targeted in Bangladesh. As discussed above the Tribunal accepts that the applicant is a Barua Buddhist from Bangladesh and therefore the Tribunal has considered whether this alone would result in a real risk of significant harm. However, as discussed above the Tribunal is not satisfied that the independent country information does not suggest that there is a real risk of such harm occurring. Furthermore the country information does not suggest the applicant would be harmed if he was to return as a Buddhist monk or because he has published books in relation to Buddhism. Having considered his claims individually and cumulatively the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa)

    54. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    55. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

19. I am satisfied that there is no jurisdictional error of the kind alleged in the application, and that the Tribunal conducted the review and its decision making according to law.  I am satisfied that the adverse findings by the Tribunal in relation to the credit of the applicant were open.  The Tribunal’s reasons are not affected by any jurisdictional error. 

20. For these reasons the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 February 2015