SZUYK v Minister for Immigration
[2015] FCCA 2448
•30 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUYK v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2448 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Bangladesh on various bases – applicant not believed – whether the Tribunal erred in considering complementary protection in respect of accepted facts considered. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R |
| Dranichnikov v Minister for Immigration (2003) 197 ALR 389; [2003] HCA 26 Htun v Minster for Immigration (2001) 194 ALR 244 NABE v Minister for Immigration (No 2) [2004] FCAFC 263 SZSHK v Minister for Immigration [2013] FCAFC 125 |
| Applicant: | SZUYK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2354 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Australian Business Underwriter |
| Solicitors for the Respondents: | Ms N Blake of Clayton Utz |
ORDERS
The name of the second respondent is amended to the Administrative Appeals Tribunal.
The application filed on 22 August 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2354 of 2014
| SZUYK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal decision was made on 21 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Bangladesh and had made claims for protection on various bases. The following statement of background facts is derived from the submissions of the parties.
The applicant is a national of Bangladesh. On 2 February 2013, he arrived in Australia on a tourist visa using a fraudulently obtained Indian passport.[1]
[1] Decision Record (DR) [5] at Court Book (CB) 127-149.
On 6 March 2013, the applicant applied for a protection visa and attended an interview before the Minister’s delegate on 16 September 2013. On 11 December 2013, the delegate refused to grant the protection visa.[2]
[2] DR [5].
On 8 January 2014, the applicant applied to the Tribunal for review of the delegate's decision. On 1 July 2014, the applicant attended a hearing before the Tribunal at which he elaborated on his claims and gave evidence. The applicant was assisted by a Bengali interpreter. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.[3]
[3] DR [6].
On 21 July 2014, the Tribunal affirmed the delegate's decision refusing the protection visa.
Applicant's claims
The applicant claims to fear harm on a number of independent grounds. First, he fears that he will be persecuted in Bangladesh because of his inter-faith relationship. The applicant is Hindu, and his de-facto partner (with whom he has two children) is Muslim. The applicant claims that he and his partner have been targeted by local Muslim leaders as a result of the relationship.[4]
[4] DR [2].
Secondly, the applicant fears that he will be harmed by the Awami League because he is a former member of the Freedom Party.[5] In support of this claim the applicant asserts that:[6]
a)he became a member of the Freedom Party in 1989 and was appointed their Organising Secretary in 1991; and
b)he co-organised the election campaign of Mr Ismail in 1991. Following the rise of the Awami League in 1998, Mr Ismail, along with a number of other senior members of the Freedom Party, fled Bangladesh. Mr Ismail now lives in Australia and the applicant has remained in contact with him.
[5] DR [2].
[6] DR [35].
Thirdly, the applicant claims that he will be persecuted in Bangladesh because he is a Hindu.[7]
[7] DR [2].
Finally, the applicant claims that he is at risk of harm in India because he travelled on a fraudulently obtained Indian passport.
Tribunal's decision
The threshold issue for the Tribunal was the applicant's ambiguous citizenship. The applicant claimed to have been born in Bangladesh in 1974. Despite the Minister’s Department's Document Examination Unit returning a report which stated that the applicant's Indian passport was genuinely issued, the Tribunal was satisfied that it could have been fraudulently obtained while the applicant was living illegally in India. Accordingly, the Tribunal found that the applicant was not an Indian citizen and his country of reference was Bangladesh.[8]
[8] DR [9]-[12].
The applicant stated that his fear of harm arose predominantly in respect of his relationship with his partner. The Tribunal considered that claim in detail and found that the applicant's evidence was not truthful or reliable. The Tribunal identified a number of inconsistencies between the evidence contained in the applicant's written statement and his oral submissions at the Tribunal hearing. Those inconsistencies went to the credibility of:
a)the development of the applicant's relationship with his partner and the circumstances of her pregnancy;[9]
b)the reaction of the community to the applicant's relationship with his partner;[10]
c)the alleged seizure of the family home following the disclosure of the applicant's relationship with his partner;[11]
d)the alleged kidnapping of the applicant;[12]
e)the applicant's employment history;[13]
f)the applicant's travels between Bangladesh and India;[14] and
g)the applicant's extensive travel history.[15]
[9] DR [13]-[18].
[10] DR [19]-[21].
[11] DR [22]-[24].
[12] DR [25]-[26].
[13] DR [27].
[14] DR [28]-[29].
[15] DR [30].
The applicant was given numerous opportunities to respond to, and explain the inconsistencies in his evidence. On each occasion, the Tribunal found that his attempts were vague and unpersuasive.
Ultimately, the inconsistencies in the applicant's evidence were, “so significant and numerous that they [led] the Tribunal to find that the applicant is not a credible witness”.[16] Within that context, the Tribunal made the following specific findings and comments:[17]
The Tribunal does not accept that he [the applicant] was kidnapped, assaulted, threatened, forced into hiding or forced to flee to India. The Tribunal does not accept that the applicant's family's home was forcibly or fraudulently possessed, that his father or family were assaulted or that they were forced to flee to India. The Tribunal does not accept that a fatwa has been issued against the applicant. The Tribunal does not accept that [the applicant’s partner] was kidnapped, assaulted, threatened or forced into hiding as a result of the relationship.
[16] DR [31].
[17] DR [32].
The Tribunal accepted that the applicant was in a relationship with his partner and that they had two children together.[18] However, having found that the applicant was not credible in his description of their relationship, or the harm which he characterised as resulting from it, the Tribunal was not satisfied that the relationship was actually "inter-faith" as he claimed. The Tribunal noted that the applicant had not provided any evidence that his partner was Muslim or even possessed a Muslim name. Accordingly, the Tribunal found that the neither the applicant nor his partner had suffered any harm as a result of an inter-faith relationship and would not suffer harm for that reason in the future.[19]
[18] DR [33].
[19] DR [34].
The Tribunal considered the applicant's claims to fear harm because of his involvement with the Freedom Party. The Tribunal accepted that independent country information supports the applicant's claim that leaders and activists from the Freedom Party have been targeted in Bangladesh.[20] However, country information also indicates that the Freedom Party is politically defunct and that there have been diplomatic attempts to have exiled members of the Freedom Party returned to Bangladesh.[21]
[20] DR [37].
[21] DR [38]-[39].
In any event, the Tribunal was not satisfied that the applicant was a member of the Freedom Party or would be targeted as a result of his political activities. This conclusion was based on the following factual findings:[22]
a)the applicant is Hindu and all sources consulted by the Tribunal indicate that the Freedom Party is an Islamic organisation. The applicant appeared to be unaware of the fundamental Islamic nature of the Freedom Party;
b)the applicant was mistaken about important facts relating to the Freedom Party such as their de-registration and slogan;
c)the Freedom Party website stated that the applicant also holds the position of Environmental Secretary of the Central Committee as well as the Organising Secretary of Sirajdikhan, Murishigonj. However, when asked if he holds or has held any other positions in the organisation, the applicant said he had held this position but it gave him "headaches and intimidation" so he changed it and never took up the position although appointed to it;
d)the applicant claimed to have co-organised Mr Ismail's campaign, but was not aware what constituency Mr Ismail represented;
e)the applicant's evidence that he had been appointed to the role of "organising secretary" in the 8th or 9th grade of school seemed implausible and lacked credibility; and
f)the applicant introduced fresh claims at the Tribunal hearing that he was forced to go into hiding following Mr Ismail's campaign.
[22] DR [40].
The Tribunal considered the supporting letters from the Freedom Party and Mr Ismail but found that they were inconsistent with the applicant's own evidence about his political roles and activities.[23] Accordingly, those letters were not sufficient to overcome the Tribunal's existing credibility concerns and gave them little weight.
[23] DR [41]-[45].
Notwithstanding this, the Tribunal gave the applicant the benefit of the doubt and considered whether the letters, if accepted to refer to matters which were materially true (namely, that the applicant was an Organizing Secretary of the Freedom Party) would assist him. However, the Tribunal did not accept that there was a real chance that the applicant would be persecuted for that reason. The Tribunal noted that the applicant had held only a junior position in the Freedom Party and was very young at the time of his claimed involvement. The applicant had not provided any evidence that low-level Freedom Party supporters are currently being persecuted in Bangladesh. Additionally, the Tribunal considered that because the applicant had returned to Bangladesh on numerous occasions, he did not fear harm there.[24]
[24] DR [46]-[50].
For the above reasons, the Tribunal rejected the applicant's claim to fear harm in Bangladesh on account of his political opinions and activities.
The Tribunal accepted that the applicant was Hindu.[25] The Tribunal further accepted that Hindus are targeted (sometimes violently) by members of the Sunni Muslim majority. However, the country information suggested that violence against Hindus typically has a political or economic dimension. As such, there was no evidence to suggest that the applicant possessed the relevant risk profile. The Tribunal was satisfied that the applicant could safely return to Bangladesh.[26]
[25] DR [52].
[26] DR [53]-[55].
Finally, the Tribunal considered the applicant's claim that he feared harm in India as a result of travelling on a fraudulent Indian passport. As India was not the applicant's returning country, and as he had not claimed that the use of a fraudulent passport would create any difficulties in Bangladesh, the Tribunal rejected that claim.[27]
[27] DR [56].
In light of the foregoing, the Tribunal found that the applicant was not a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).
The Tribunal proceeded to consider whether the applicant satisfied the complementary protection criteria in s.36(2)(aa) of the Migration Act. Having found that the applicant did not face "a real chance" of harm as a result of his relationship, his political activities or his religion, the Tribunal was likewise satisfied that he did not face a "real risk of harm" for those reasons. Accordingly, the applicant was also unsuccessful under s.36(2)(aa) of the Migration Act.
The judicial review application
These proceedings began with a judicial review application filed on 22 August 2014, on which the applicant continues to rely. There are three grounds in the application but only the first two were pressed at the trial:
1. The Refugee Review Tribunal has failed to provide reasons for its decision pursuant to section 36(2)(aa) of the Migration Act.
Particulars:
In dealing with the Applicant’s claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the RRT explicitly failed to provide separate reasons to its consideration under section 36(2)(a) of the Act.
2. The RRT has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958
Particulars:
In dealing with the Applicant’s claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the Refugee Review Tribunal explicitly failed to disaggregate the statutory formulae under section 36(2)(a) and 36(2)(aa) of the Act at Paragraph [59] and following the decision, thereby transporting findings regarding the motivations of his persecutors at paragraph [53] into its consideration of the Applicant’s complementary protection claims.
I have before me as evidence the court book filed on 22 October 2014.
Both the applicant and the Minister made written and oral submissions.
Consideration
The present application raises essentially one issue, namely the Tribunal findings regarding claims based on religion and the assessment undertaken in relation to complementary protection.
It is established in administrative law that a decision maker is required to correctly construe and consider claims (and component integers thereof) made by an applicant or apparent on the face of the material before him.[28]
[28] Htun v Minster for Immigration (2001) 194 ALR 244 per Allsop J (with whom Spender and Merkel JJ agreed) at [42]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389; [2003] HCA 26 at [22]-[24], [27] per Gummow and Callinan JJ; [88]-[89] per Kirby J; [95] per Hayne J.
Further, the applicant submits that the Tribunal's obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate's decision on the basis of all the materials before it.[29]
[29] NABE v Minister for Immigration (No 2) [2004] FCAFC 263.
In the present case and after correctly directing itself regarding the risk of harm in complementary protection claims, by reference to the Full Federal Court authority of Minister for Immigration v SZQRB,[30] the Tribunal then stated:[31]
The Tribunal accepts that the test for ‘real chance’ is the same as that for “real risk”. Therefore, for the reasons discussed above the Tribunal is not satisfied that there is a real risk that the applicant will be harmed as a result of his relationship with [his partner], his religion or his political opinions or activities. [emphasis added]
[30] (2013) 210 FCR 505.
[31] DR [59].
The applicant contends that, having so transposed the findings from the alternative test pursuant to test under s.36(2)(a) to the complementary protection assessment, the findings regarding the alternative test were “bound up” in Refugee Convention related reasoning.
The applicant submits:
a)it was acknowledged that the applicant squarely raised a claim to fear harm on the basis of his religion;[32]
b)it was accepted that “Hindus constituted only approximately 9 per cent of Bangladesh’s population of 152.5 million, the majority of whom are Muslim”;[33]
c)it was accepted that “USDOS states that the ‘government and many civil society leaders’ believe that ‘violence against members of minority religious groups normally had political or economic dimensions, and could not be attributed solely to religious belief or affiliation”.
[32] DR [53].
[33] DR [53].
The submission was developed as follows; in dealing with the “Claims relating to religion”, the Tribunal confined its reasoning to four discrete paragraphs:
a)the first paragraph ([52]) accepts that the applicant is Hindu or could be identified as such;[34]
b)the second paragraph ([53]) features reasoning ultimately “bound up” in Refugee Convention related reasoning (the motivations of the persecutors) and ultimately irrelevant to the assessment under the complementary protection provision:[35]
i)this analysis is neither dispositive of nor relevant to the applicant’s claims under complementary protection, which do not require a Refugee Convention-related nexus;
ii)although the Tribunal appears to have given weight to the anecdote provided by the applicant during the hearing regarding his “Hindu neighbour”, the inquiry is specific to issues related to the Refugee Convention;
c)the third paragraph ([54]) deals with the “religious claim” only in terms of whether the applicant “could avail himself of a right to enter or reside in India” rather than:
i)the claim as advanced - namely whether the applicant would face harm in Bangladesh as a necessary and foreseeable consequence of being returned” as opposed to India; and
ii)the claim in the context of the blanket findings at [12][36] that the “applicant is not excluded from Australia’s protection by subsection 36(3)” and that Bangladesh would be “regarded as the receiving country for the purposes of s.36(2)(aa)”.[37]
[34] DR [52].
[35] DR [53].
[36] CB 129
[37] DR [12]
I mention in passing that [54] of the Tribunal’s reasons is curious in that it purports to deal with the capacity of the applicant to find safety in India, although s.36(3) of the Migration Act was not enlivened, given that the Tribunal had disposed of the applicant’s claims pursuant to s.36(2). It appears from that paragraph that the Tribunal was seeking to deal with the applicant’s claim that he was compelled to remain in Bangladesh and could not go to India and no error on the part of the Tribunal in respect of that paragraph was alleged, insofar as it involved consideration of circumstances in India.
In light of the statutory test defining significant harm pursuant to s.36(2A) and the authority of this Court in SZRNT v Minister for Immigration & Anor[38], the applicant submits that Tribunal asked itself the wrong question when dealing with the complementary protection claim.
[38] [2015] FCCA 765
Finally, the Tribunal at [55] of the decision[39] deals only with a subset of significant harm (ie assaults, threats or kidnapping) as opposed to those types of harm anticipated by the statutory test, namely “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”.
[39] CB 145
The references in [55] of the decision to issues relating to the applicant’s past access to education and his ability to travel internationally are said to be irrelevant as to whether the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of being returned to his home country.
The applicant therefore submits that the findings made as to whether he would face harm on the basis of his religion are not dispositive of his claim under the complementary protection provision.
The applicant draws on the reasoning of my decision of SZSFK v Minster for Immigration & Anor[40] in discerning jurisdictional error, where I stated:
It was open to the Reviewer to deal with the complementary protection criterion in a self contained way in part of his report. He chose, at [72] to emphasise what he saw as the “non systematic or targeted” threat to the applicant. This could have been a reference to s.91R(1)(c) of the Migration Act (which the parties agree is not relevant to the complementary protection criterion) or it could have been a general reference intended to quantify the risk. The use of the word “systematic” is problematic. Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not. The use of language drawn from an irrelevant provision of the Migration Act at least creates confusion and may point to reviewable legal error. Further, the reliance by the Reviewer at [75] on unspecified “findings set out above” is particularly problematic. On its face, it appears to be a reference to all of the Reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion (such as a finding of a lack of Refugees Convention nexus with harm suffered by the applicant).
[40] [2013] FCCA 7 at [97]
I prefer the Minister’s submissions in respect of the grounds of review.
Ground 1 impugns the Tribunal's decision on the basis that it did not provide “separate reasons” in dealing with the applicant's claim under s.36(2)(aa) of the Migration Act.
I accept that this allegation does not give rise to any error of law amenable to review. At [58] to [59] of the Tribunal's decision, the Tribunal had explicit regard to the complementary protection criterion in s.36(2)(aa) of the Migration Act. It concluded that neither the applicant's relationship with his partner, his political opinions or activities or his religion would put him at risk of harm should he return to Bangladesh. The Tribunal's adoption of its factual findings in respect of the Refugees Convention criterion in support of its findings made pursuant to the complementary protection criterion is uncontroversial, given that the “real chance” test relevant to s.36(2)(a) of the Migration Act and the “real risk” test relevant to s.36(2)(aa) of the Migration Act are one and the same.[41] Where, as in the present case, the Tribunal's factual findings are based on an adverse view of the credibility of the applicant's claims and evidence, these findings will be relevant to assessment under the complementary protection criterion in addition to assessment under the Refugees Convention criterion.[42]
[41] Minister of Immigration v SZQRB [2013] FCAFC 33 at [246] (SZQRB); SZSHK v Minister for Immigration [2013] FCAFC 125 at [32] (SZSHK)
[42] SZSHK at [31]
I also accept that the Tribunal had correct and proper regard to the legal authorities and was not required to provide “separate reasons” for its findings under s.36(2)(aa) of the Migration Act.
As to the second ground, the applicant’s assertion in relation to [53] and [59] of the Tribunal decision would have had some substance if the applicant had advanced any claims that could not be disposed of by reference to the refugee criterion alone. That is because the country information before the Tribunal indicated that religious minorities in Bangladesh experienced some risk of harm from the Sunni Muslim majority population but that the risk was multi-faceted rather than attaching specifically to the attribute of religion. The Tribunal records at [53] that when the country information was specifically put to the applicant he merely noted that his Hindu neighbour had been evicted from his house. He did not provide any evidence in support of that claim to the Tribunal and neither did he advance any claim that required consideration pursuant to the complementary protection criterion. As has been stated many times, the Tribunal is not under any obligation to pursue a claim not made by an applicant.
To the extent that the applicant’s religious claim could be said to be interwoven with his political claim, both were plainly rejected by the Tribunal. Both were capable of disposition by reference to the refugee criterion and both were disposed of. In short, the Tribunal found that the applicant was not, by reason of his involvement with the Freedom Party, vested with a political profile such that he would be at risk of harm in Bangladesh. The Tribunal’s findings at [47] were logically probative of the issue of whether the applicant would face a “real risk” of harm because of his political opinions and activities under the complementary protection criteria. There was no surviving element of the applicant’s claims that required separate consideration pursuant to the complementary protection criterion.
Conclusion
Accordingly, the Tribunal did not err in its reasoning in respect of s.36(2)(aa) of the Migration Act. It follows that the applicant has been unable to establish that the decision of the Tribunal is affected by any jurisdictional error. It is thus a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 September 2015
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