SZUYX v Minister for Immigration

[2016] FCCA 603

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYX v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 603

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425

Cabal v Minister for Immigration [2001] FCA 546
Chen v Minister for Immigration [2011] FCAFC 56
Minister for Immigration v SZJSS (2010) 243 CLR 164
Minister for Immigration v SZNSP (2010) 184 FCR 485
Re Minister for Immigration; Ex parte Durairajasingham (2008) 168 ALR 407
SZLSW v Minister for Immigration [2008] FCA 1321
WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant: SZUYX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1096 of 2015

Judgment of: Judge Driver

Hearing date: 21 March 2016

Delivered at: Sydney

Delivered on: 21 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Maddocks of DLA Piper

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1096 of 2015

SZUYX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 24 March 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to the applicant’s protection claims and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions. 

2. The applicant is a male citizen of Bangladesh born on 1 January 1990.[1] He arrived in Australia on 14 March 2013.[2]

   [1] Court Book (CB) 12, 44

   [2] CB 14

3. The applicant applied for a protection (Class XA) visa on 12 April 2013.[3]  His claims were set out in his application form and a statement accompanying the application.[4]

   a)the applicant claimed that he was a Buddhist from Lama in the Hill district of Bandarban, Bangladesh and that the local authorities and Muslims targeted him for reason of his religion and ethnicity, including confiscating the applicant's land and property;

   b)the applicant further claimed that his father was particularly targeted because he was local community leader.  The applicant claimed that, in January 2009 during a Buddhist celebration, local Muslims attacked the temple and one of the Muslim leaders, Abdul Jalil, was injured.  The applicant claimed that his father was subsequently charged, arrested and later granted bail.  The applicant also claimed that, in April 2009, his father was assaulted by local Muslims and the applicant was threatened with kidnapping;

   c)the applicant claimed that, he consequently went into hiding at a local monastery and later fled Bangladesh to India on 15 October 2010.

   [3] CB 1-26

   [4] CB 18-21, 27-31

4. The application was refused by a delegate of the Minister on 25 November 2013.[5]

   [5] CB 94-106

5. The applicant applied to the Tribunal for review of the delegate's decision on 23 December 2013.[6]  The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.[7]  He also provided a letter setting out country information relating to the treatment of Buddhists in Bangladesh.[8]

   [6] CB 107-112

   [7] CB 119-131

   [8] CB 132-150

6. The applicant gave oral evidence before the Tribunal on 10 June 2014.[9]

   [9] CB 161-164

7. On 31 July 2014, the Tribunal affirmed the decision under review.[10] 

   [10] CB 226-243

8. The applicant applied to this Court for review of that Tribunal decision, and on 21 October 2014 orders were made by consent for the matter to be remitted to a differently constituted Tribunal on the basis that the Tribunal had failed to consider evidence submitted by the applicant; specifically, documents relating to Court proceedings in Bangladesh.[11]

   [11] CB 245

9. The applicant gave oral evidence before the Tribunal (differently constituted) on 17 March 2015.[12]

   [12] CB 253

10. The Tribunal made its decision on 24 March 2015.[13]  The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.

    [13] CB 275-301

The Tribunal’s decision

1. The Tribunal accepted that the applicant was a Bengali speaking Barua Buddhist.[14]  The Tribunal consequently accepted that, if returned to Bangladesh, the applicant may wish to resume living as a full-time monk.[15]

   [14] CB 293-294 [73], 294-295 [76]

   [15] CB 293-294 [73]

2. However, with respect to the applicant's claims, the Tribunal found that the applicant was not a credible, truthful or reliable witness.  The Tribunal found that the applicant had fabricated his claims and concocted evidence to achieve an immigration outcome.[16]

   [16] CB 290 [58], [61]

3. The Tribunal found that the applicant had given inconsistent evidence regarding some of his claims.[17]

   [17] CB 285-288 [46]-[54], 289-290 [57]

4. The Tribunal found that the applicant was unable to describe his local area, even though he had lived there for 19 years and had been educated for eight of those years.[18]

   [18] CB 289 [56]

5. The Tribunal also found that, if the applicant had genuinely feared persecutory harm, then he would have made greater efforts to seek asylum in the countries he travelled to before arriving in Australia.[19]

   [19] CB 288 [55]

6. The Tribunal acknowledged that country information before it supported the applicant's claims that there had been land disputes and attacks on Buddhists in the applicant's local area.[20]  However, in light of the adverse credibility findings, the Tribunal ultimately did not accept that the applicant or his family were targeted over their land or because they were Buddhists.[21]  Further, the Tribunal did not accept that the applicant was from Lama in the Chittagong Hill area and that he was perceived as being a member of the group of Chittagong Hill tribes.[22]  The Tribunal also did not accept that the applicant's father was a community leader and had been harassed, persecuted, arrested or assaulted,[23] or that the applicant would be targeted because of his father's political profile.[24]

   [20] CB 283-285 [43]-[46]

   [21] CB 285 [46], 290-291 [62]

   [22] CB 291 [64], 293 [72]

   [23] CB 290-291 [62]

   [24] CB 298 [93]

7. In making these findings the Tribunal considered the corroborative evidence submitted by the applicant, including the Court documents to which the previous Tribunal failed to have regard.[25]

   [25] CB 292 [65]-[66]

8. The Tribunal accepted that there had been incidents of violence against Buddhists in Bangladesh.[26]  However, with reference to country information, the Tribunal found that the chance of the applicant being harmed for reason of his religion or ethnicity was remote.[27]  The Tribunal also did not accept that Buddhist monks were being targeted in a systematic manner.[28]  The Tribunal accepted that the applicant had been involved in one protest in India about the treatment of Buddhists in Bangladesh, however, the Tribunal found that the applicant had no interest in politics if he were to return to Bangladesh.[29]

   [26] CB 295 [77]

   [27] CB 298 [91]

   [28] CB 298 [92]

   [29] CB 298-299 [94]

9. Consequently, the Tribunal found that, if returned to Bangladesh, the applicant would not suffer serious harm.[30]

   [30] CB 299 [97]-[98]

10. The Tribunal went on to consider whether the applicant met the complementary protection criterion:[31]

    a)on the basis of the credibility findings, the Tribunal did not accept that the applicant would suffer significant harm at the hand of the Muslims, authorities, or Abdul Jalil,[32] in the Chittagong Hill area[33] or because of the applicant's or his father's political profile;[34]

    b)on the basis of country information, the Tribunal did not accept that the applicant would suffer significant harm for being a Barua Buddhist,[35] for practicing his faith[36] or if he were to protest.[37]

    [31] CB 299-301 [99]-[106]

    [32] CB 299-300 [99]

    [33] CB 300 [103]

    [34] CB 300 [104]

    [35] CB 300 [100]

    [36] CB 300 [101]

    [37] CB 300 [105]

11. Consequently, the Tribunal found that the applicant was not a person to whom protection obligations were owed.[38]

    [38] CB 301 [107]-[110]

The present proceedings

1. These proceedings began with a show cause application filed on 22 April 2015.  The applicant continues to rely upon that application.  He has not taken up the opportunity afforded him by orders made by a registrar on 21 May 2015 to file and serve an amended application and additional evidence.  The application is, on its face, deficient.  That is because the application does not assert any jurisdictional error by the Tribunal.  The grounds in the application simply take issue with the merits of the Tribunal decision:

   1. The [Tribunal] did not accept my claims and did not grant my asylum in Australia despite I met all requirements.

   2. My life will be at risk if I return to Bangladesh.

2. The application is supported by a short affidavit which repeats the contentions in the application.  I received the affidavit as a submission. 

3. The only evidence I have before me is the court book filed on 10 June 2015. 

4. I invited oral submissions from the applicant this afternoon.  Plainly, he considers that the Tribunal has made the wrong decision.  In particular, he takes issue with the Tribunal’s findings in relation to his claims about his home district in Bangladesh.  There may be some substance in the applicant’s concerns.  It is apparent from his name, his physical appearance and his knowledge of languages associated with the Chittagong Hill Tracts area that the applicant probably belongs to an ethnic minority from the eastern region of Bangladesh near the Burmese border.  He demonstrated to me in Court this afternoon his knowledge of one of two languages associated with that area.  He claims both of those languages as mother tongues.  He requested a Bengali interpreter before the Tribunal and before the Court simply as a convenience. 

5. The applicant speaks numerous languages, including English and some Indian languages.  It is possible that the Tribunal was too quick to reject on credibility grounds, the applicant’s claims relating to ethnicity and physical location.  That is a matter the Minister could consider if he was so minded.  However, my general feeling of unease about aspects of the Tribunal’s findings is not sufficient for the Court to intervene.  The applicant’s concerns about the Tribunal decision do not rise above a simple dispute over the merits of the Tribunal decision.

6. The Minister’s submissions deal adequately with the grounds advanced by the applicant.  I agree with those submissions. 

7. The Tribunal complied with its procedural fairness requirements set out in Division 4 of Part 7 of the Migration Act 1958 (Cth) (Migration Act):

   a)as the Tribunal could not make a decision favourable to the applicant on the material before it, pursuant to s.425 of the Migration Act, the Tribunal invited the applicant to attend a hearing before it to present evidence and arguments in support of his application;[39] 

   b)at the hearing the Tribunal traversed the issues dispositive of the review with the applicant.  Particularly, the Tribunal extensively set out in its decision record the inconsistencies in the applicant's evidence which led to the finding that the applicant was not a truthful witness;[40]

   c)the Tribunal’s s.424A obligations were not enlivened in this matter.

   [39] CB 249-250

   [40] CB 286-290 [47]-[57]

8. The findings made by the Tribunal were open to it on the material and evidence before it and for the reasons it gave.

9. The Tribunal set out the relevant law at [10]-[23] of its decision record.  At [25], the Tribunal also set out a comprehensive list of the documentary evidence before it and made findings with respect to that evidence.[41]

   [41] see [43], [50], [65]-[68], [73] and [77]

10. As decision-maker par excellence, it was open to the Tribunal to find that the applicant was not a credible witness.[42]There is nothing to suggest that the Tribunal’s credibility findings were based on a false factual basis or vitiated by bias.

    [42] Re Minister for Immigration; Ex parte Durairajasingham (2008) 168 ALR 407 at [67]

11. The choice of weight the Tribunal assigned to the corroborating documents was a matter for the Tribunal.[43]  Further, the Tribunal did not fall into error by first making an assessment of the applicant's credit before giving consideration to the corroborative evidence, including at [65] and [66].[44]

    [43] Minister for Immigration v SZJSS (2010) 243 CLR 164; WAEE v Minister for Immigration (2003) 75 ALD 630

    [44] Minister for Immigration v SZNSP (2010) 184 FCR 485 at [33]; Chen v Minister for Immigration [2011] FCAFC 56 at [35]

12. The Tribunal was also not obliged to consider the untranslated documents submitted by the applicant given the absence of evidence about their content and the general proposition that the Tribunal is not obliged to obtain translations of foreign language documents.[45]

    [45] Cabal v Minister for Immigration [2001] FCA 546 at [25]; SZLSW v Minister for Immigration [2008] FCA 1321 at [18]

13. The Tribunal found the applicant’s evidence as to his home district confusing and inadequate.  The applicant, for his part, asserts that he was confused by the Tribunal’s questions.  I do not have available to me any evidence bearing on that issue.  Even if the applicant were confused, however, that would not in itself point to any argument of jurisdictional error.

14. From my own consideration of the available material, I can see no arguable case of jurisdictional error. 

15. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Rules).

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court rules.

17. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 24 March 2016