SZUZK v Minister for Immigration
[2015] FCCA 2760
•18 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUZK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2760 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political, religious and particular social group persecution in Bangladesh – applicants disbelieved in critical respects – fears arising from accepted facts found not to be well-founded – whether the Tribunal overlooked an integer of the applicants’ claims or whether the Tribunal failed to consider its Vulnerable Persons Guidelines considered. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5, 36, 425, 499 |
| Cases cited: M100 of 2004 & Anor v Minister for Immigration [2007] FMCA 829 Minister for Immigration v SCAR (2003) 128 FCR 553 |
| First Applicant: | SZUZK |
| Second Applicant: | SZUZL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2440 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 October 2015 |
| Date of Last Submission: | 3 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2015 |
REPRESENTATION
| The Applicants appeared in person |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application as amended on 19 December 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2440 of 2014
| SZUZK |
First Applicant
| SZUZL |
Second 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 decision was made on 30 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the parties.
The applicants are citizens of Bangladesh who arrived in Australia in 2003. On 10 October 2012, they lodged an application for protection visas, which was refused by a delegate of the Minister on 12 July 2013[1]. The applicants subsequently filed an application with the Tribunal to review the delegate’s decision. On 30 July 2014, the Tribunal affirmed the delegate’s decision to refuse to grant the applicants protection visas[2].
[1] Court Book (CB) 491-530
[2] CB 979-995
The first applicant (the husband) claimed to fear serious or significant harm in Bangladesh for reasons of his political opinion as a former member and activist with the Bangladesh Worker's Party (BWP) and his religion as an Ahmadi and because he was an atheist. He also claimed to fear harm as a childless man and that he was at risk of kidnapping and ransom due to his membership of a particular social group comprising “Bangladeshis who have lived in Australia for a lengthy period and are perceived as wealthy”. He also claimed that he would be unable to obtain proper treatment for his various medical conditions (including sleep apnoea).
The second applicant (the first applicant’s wife) claimed she would be unable to obtain treatment for her medical condition (sarcoidosis), that she was subjected to domestic violence from her husband's family and faced harm in Bangladesh because she was a childless woman.
The Tribunal, in rejecting the applicants’ claims, expressed serious reservations about their credibility and the genuineness of their claims. The Tribunal referred to the fact that they failed to mention in their extensive dealings with the Department of Immigration in the ten years since arriving in Australia that they feared harm for particular Convention reasons. It also referred to the fact that the applicants had expanded (and added to) the nature of their claims over time as well as the fact that they have provided inconsistent evidence[3].
[3] CB 983-984 [23]-[28]
In the result, the Tribunal did not accept the first applicant’s claims. It did not accept that the first applicant would be harmed either as an Ahmadi or as an atheist or because of his political activities. The Tribunal rejected the first applicant’s claim that he was at risk of harm because he would be a childless man in Bangladesh or that he would be unable to obtain medical treatment for sleep apnoea[4]. The Tribunal also found that there was no credible evidence to suggest that the possibility of the first applicant being targeted for abduction because he is perceived to have money is more than remote or insubstantial[5].
[4] CB 984-990 [30]-[53]
[5] CB 990 [55]
The Tribunal also did not accept the second applicant’s claims. While the Tribunal accepted that the second applicant was suffering from sarcoidosis, the Tribunal concluded that there was no basis on which to find that she would be denied medical treatment in Bangladesh[6]. The Tribunal also concluded that the second applicant was not at risk of persecution or significant harm by virtue of her suffering depression. The Tribunal rejected the second applicant’s claim that she would be subject to domestic violence by her husband’s family (and stigmatised by society at large) because of the fact that she was childless and also rejected the claim that she would suffer persecution and/or significant harm by virtue of her husband’s political or religious beliefs[7].
[6] CB 991 [60]
[7] CB 991-994 [57]-[73]
The judicial review application
These proceedings began with a show cause application filed on 29 August 2014. The applicants now rely upon an amended application filed on 19 December 2014. There are three grounds in that application:
1.The Tribunal made a legal error in failing to consider the full integers of the Second named applicant.
Particulars
a) The First-named applicant is an Ahmadi man.
b) The Second-named applicant is a childless Muslim woman claiming to fear domestic violence.
c) At [73] the Tribunal did not accept:
“that the first named applicant has a well-founded fear of persecution for reason either of his political opinions or his religion, it follows that neither does the second named applicant.”
2.The Tribunal made a legal error in failing to consider its own Guidelines on Vulnerable Persons when taking evidence from the Second-named applicant.
Particulars
a) At [71] the Tribunal noted the mental vulnerability of the Second-named applicant indicated by the psychological reports submitted.
3.The Tribunal made a legal error in [67] by considering the wrong issue of whether the Second-named applicant “adequately explained the discrepancies in relation to her addresses and employment” instead of her claims that due to her characteristics of being childless and a Muslim that she was and will be in the foreseeable future, subjected to physical violence at the hands of her in-law relations.
The third ground of review was not pressed.
In addition to the court book in two volumes filed on 1 October 2014, I received into evidence, subject to relevance, the affidavit of Jacqueline Zinck made on 25 February 2015, to which is annexed a transcript of the hearing conducted by the Tribunal.
The applicants and the Minister both made oral and written submissions.
In his oral submissions, the first applicant stressed that he had lived in Australia since 2003 when he arrived as a student. In the course of his studies, he has obtained a PhD from the Central Queensland University. His wife, the second applicant, has also obtained TAFE qualifications. Their intention was to migrate to Australia permanently as skilled migrants. They made several visa applications but were unsuccessful. They encountered several technical difficulties, including the age of the first applicant and his failure to pass an International English Language Testing System (IELTS) test. They also applied unsuccessfully to migrate to New Zealand and Fiji. The applicants had sought the intervention of the Minister in order to obtain a favourable outcome as skilled migrants. That was also unsuccessful.
Both applicants emphasised their fear of returning to Bangladesh as a childless couple. It appears that this fear has crystallised following the failure of their attempts to obtain a migration outcome by means other than a protection visa. They contend that the Tribunal did not consider the psychological impact upon them of having to return to Bangladesh as a childless couple. They also contend that the Tribunal failed to deal with the second applicant’s claim of a fear of forced conversion to the Ahmadiya faith. The second applicant also referred to the adverse impact of her heart (or lung) condition. Whatever the outcome of these legal proceedings, they are contemplating a further request for Ministerial intervention.
In his oral submissions, counsel for the Minister submitted that the Tribunal both understood and considered both applicants’ claims. He submitted that there was no clearly articulated claim of a fear of psychological harm as a childless couple.
In their submissions in reply, the applicants took issue with the question of whether elements or integers of their claims had been overlooked. I provided the applicants with an opportunity post-hearing to make further written submissions, drawing attention to any parts of the court book or of the transcript of the Tribunal hearing which establish a claim of the second applicant relating to religion or childlessness that was overlooked by the Tribunal. They filed further submissions on 23 October 2015.
Further submissions were filed on behalf of the Minister on 3 November 2015.
Consideration
First ground of review
In their first ground of review, the applicants refer to the Tribunal’s finding at [73] of its reasons, where the Tribunal concluded as follows:
Harm arising from first named applicant’s political and/or religious beliefs
The second named applicant has not explicitly claimed that she fears persecution or significant harm as a consequence of her husband’s political opinion or religious views. For completeness, I find that because I do not accept that the first named applicant has a well-founded fear of persecution for reason either of his political opinion or his religion, it follows that neither does the second named applicant. Similarly, because I am not satisfied that there are substantial grounds for believing that the first named applicant is at real risk of suffering significant harm for these reasons, it follows that neither is the second named applicant.
Earlier in its reasons, the Tribunal had concluded that the first applicant did not face a real chance of harm of any kind as a consequence of his political opinion[8] and that he would not engage in political activities upon his return to Bangladesh[9]. The Tribunal, having first accepted the first applicant’s evidence that he did not practise the Ahmadi faith, also found that the first applicant would also not be identified as an atheist in Bangladesh and therefore was not at risk of harm on this basis[10].
[8] CB 989 [46]
[9] CB 989 [47]
[10] CB 988 [40]
The Tribunal’s findings at [73] should be understood in their proper context. All the Tribunal was saying was that, having rejected the first applicant’s claims to fear harm because of his own alleged (but not accepted) religious or political activities, there was no basis to suggest that the second applicant would suffer harm because of her husband’s alleged religious or political activities. The Tribunal’s finding was consistent with the way that the second applicant presented her claims; the second applicant did not assert that she would face harm because of her husband’s political/religious activities and the Tribunal’s conclusion at [73] reflects the fact that there was no evidence that suggested that second applicant would be at risk because of her husband’s religious or political activities in circumstances where there was no evidence that the husband would be at risk because of his own activities.
I therefore reject the applicants’ contention that the Tribunal failed to consider a claim, or committed an error of the type identified by me in SZSFK v Minister for Immigration & Anor.[11] This ground of review fails.
[11] [2013] FCCA 7
Second ground of review
In their second ground of review, the applicants allege that the Tribunal made a “legal error” in failing to consider its own Guidelines on Vulnerable People (Guidance Manual) when taking evidence from the second applicant.
Contrary to what the applicants appear to contend, the issue is not whether the Tribunal failed to take into account the Guidance Manual (which is not a binding direction of the type contemplated by s.499 of the Migration Act). Rather the issue is whether the Tribunal complied with its obligations under s.425 of the Migration Act. That the Guidance Manual did not constitute a relevant consideration in the sense understood in cases such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd[12] is evident from the decision in M100 of 2004 & Anor v Minister for Immigration.[13] In M100, Judge Riley[14] rejected the submission that a document entitled “Guidance on the Assessment of Credibility” (which, like the Guidance Manual, was an internal guidance document published by the Tribunal for its own use) was binding on the Tribunal. As her Honour stated[15]:
The credibility guidelines were published by the Tribunal itself. However, that does not mean that the credibility guidelines bind a particular Tribunal member in making a decision about a particular case. The credibility guidelines begin with the words, “This paper sets out general guidance concerning the assessment of credibility by” the Tribunal. It contains statements of general principle rather than directions on the particular decision that should be made in a case having particular feature.
…
To the extent that the Gender Guidelines or the Credibility Guidelines require the Tribunal to afford procedural fairness, or consider the evidence as a whole or refrain from acting on a gut feeling, they simply require compliance with the existing law. A failure by the Tribunal in any of those respects would result in jurisdictional error, not because the guidelines were ignored but because the existing law was not applied. In my view the Gender and Credibility Guidelines are not relevant considerations and any failure by the Tribunal to have regard to them would not constitute jurisdictional error.
[12] (1986) 162 CLR 24
[13] [2007] FMCA 829. Followed in SZMDU v Minister for Immigration & Anor (No 2) [2008] FMCA 1139 at [41]-[43] and MZZOG & Ors v Minister for Immigration & Anor [2014] FCCA 1901 at [64]
[14] at [90]
[15] at [96] and [103]
The Tribunal complied with s.425 of the Migration Act
Section 425(1) of the Migration Act provides that the Tribunal must “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. In Minister for Immigration v SCAR[16], the Full Federal Court interpreted this provision as requiring that a “real and meaningful” invitation be given and that this obligation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. In SCAR, the visa-claimant had given evidence to the Tribunal in a vague and confused manner. Unbeknown to the Tribunal, the visa-claimant had recently received news of his father’s death and in the opinion of a psychologist was in no condition to handle the hearing before the Tribunal. The Full Federal Court concluded that, given the findings of fact made by the primary judge that the visa-claimant was not in a fit state to represent himself before the Tribunal (even though the Tribunal was not aware of this) it was clear that the invitation he received under s.425 of the Migration Act was not a meaningful one and that the Tribunal therefore fell into jurisdictional error.
[16] (2003) 128 FCR 553
The decision in SCAR, which remains good law[17], can be contrasted with the decision of the Full Federal Court in Minister for Immigration v SZNVW[18]. In SZNVW, the Federal Magistrate had found that the Tribunal did not offer the applicant a “real and meaningful” invitation under s.425 of the Migration Act. The Federal Magistrate observed that, in arriving at its adverse conclusions about the visa-claimant’s credibility, the Tribunal had placed a great deal of weight upon matters of demeanour, memory and consistency and concluded that, in relation to all of those matters, the visa-claimant was denied a fair opportunity of having the Tribunal assess whether those defects were attributable to a mental impairment rather than a lack of veracity. The Federal Magistrate held, by reason of material concerning the visa-claimant’s emotional and mental state which was placed before the Federal Magistrate but which was not before the Tribunal, that “the Tribunal was deprived of the opportunity to participate in the hearing and to have the visa-claimant’s evidence fairly assessed by the Tribunal in the light of his impairment”.
[17] See Minister for Immigration v SZNVW (2010) 183 FCR 575 at [31] per Keane CJ; [73] per Perram J
[18] (2010) 183 FCR 575
The Full Federal Court allowed the Minister’s appeal, finding that the hearing required by s.425 of the Migration Act is not nullified by a mere failure by an applicant to present his case in the best possible light. As Emmett J stated[19]:
There was, in my respectful opinion, no foundation for the Federal Magistrate’s ultimate conclusion that “the applicant was denied a fair opportunity of having the Tribunal assess whether those defects [in addition to demeanour, memory, and consistency] were attributable to a mental impairment, or to concerns about veracity.” The Tribunal was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence. The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his “demeanour, memory and consistency”, as he wished. There is no suggestion that his capacity to make decisions in his own interests in that regard was impaired by his condition.
The present case falls well outside the authority of this Court’s decision in SCAR. The further evidence subsequently adduced before the Federal Magistrate was not apt to, and was not found to, demonstrate an unfitness to “give evidence and present arguments” at the hearing. Nor was this a case where the integrity of the hearing under s 425 was subverted by a want of an appreciation on the part of the Tribunal that the respondent’s presentation of his case might have been adversely affected by an impaired mental state of which the Tribunal was oblivious.
[19] (2010) 183 FCR 575 at [36]-[37]
There is nothing in the evidence before me that suggests that the second applicant’s mental health was such so as to “deny [her] the capacity to give an account of [her] experiences, to present argument in support of [her] claims, to understand and to respond to questions put to [her]”[20]. There is therefore no basis for the contention that the Tribunal did not offer the applicants a “real and meaningful” invitation under s.425 of the Migration Act or that there was a “subversion” of the intended operation of s.425[21] such that the Tribunal failed to “discharge … its imperative statutory functions with the respect to the conduct of the review”[22].
The additional issue – was any element or integer of the second applicant’s claims relating to childlessness or religion overlooked by the Tribunal?
[20] SZNVW (2010) 183 FCR 575 at [20] per Keane CJ (as his Honour then was)
[21] SZFDE v Minister for Immigration (2007) 232 CLR 189 at [32]
[22] SZFDE (2007) 232 CLR 189 at [51]
At the hearing of this matter on 9 October 2015, I granted the applicants leave to file further written submissions, drawing attention to particular pages of the court book or the transcript of the Tribunal hearing which establish a claim of the second applicant relating to religion or childlessness that was overlooked by the Tribunal. The purpose of granting that leave was to give the applicants the opportunity to make good their claim made orally at the hearing that the Tribunal had erred in that regard.
In their submissions, the applicants draw attention to a substantial amount of material pertaining to the second applicant’s psychological issues that are claimed to be related to the fact that she is unable to have children. Most of this material is taken from the court book, which runs to 995 pages. I do not know what material in the court book was expressly shown to the Tribunal during the course of the Tribunal hearing that took place on 2 April 2014. I proceed, however, on the basis that all of that material was constructively before the Tribunal. Much of the material in the court book is general and does not relate specifically to the applicants or claims they made based on their particular circumstances and history.
I accept the Minister’s submission that the material to which the applicants refer in their submissions can be organised into a number of categories.
First, there are references to evidence of the second applicant’s general psychological condition[23].
[23] see [2.1], [2.2], [2.3], [2.4], [2.5], [3.1], [5.1], [5.2], [5.3], [6.1], [6.2], [6.6], [6.7], [6.12], [7.2], [7.3], [7.5], [7.6], [8.2], [8.3], [8.4], [10.1], [12.4], [12.5] and [12.6] of the applicants’ further written submissions
Secondly, there are references to country information relating to the status of childless women in Bangladesh[24].
[24] see [4.1], [4.2], [4.3], [4.4], [4.5], [4.6], [4.7], [4.8], [4.9], [4.10], [6.8], [6.9], [6.11], [12.2] and [12.3]
Thirdly, there are references to occasions in which the second applicant claims that she was subjected to harm from her family because of her childless status and religion[25].
[25] see [4.1], [4.2], [4.3], [4.4], [4.5], [4.6], [4.7], [4.8], [4.9], [4.10], [6.8], [6.9], [6.11], [12.2] and [12.3]
The applicants also contend that the Minister’s delegate ignored or misunderstood their claims[26]. That is beyond the scope of these proceedings. They also make various complaints about the Tribunal’s findings[27] that rise no higher than a complaint about factual findings that the Tribunal made.
[26] see [5.4]-[5.8]
[27] see [11.2]-[11.7]
The complementary protection regime
Much of the applicants’ challenge to the Tribunal’s decision centres on the Tribunal’s complementary protection findings. The Minister submits that, when the key features of that regime are understood, the applicants’ challenge falls away. I agree.
The key provision of the “complementary protection regime” is the visa criterion in s.36(2)(aa) of the Migration Act. In order to meet that criterion, a visa-claimant must demonstrate that there are “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”.
Section 36(2A) provides that a non-citizen such as the applicant will suffer significant harm if (relevantly):
…
(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.
Each of the types of “significant harm” referred to in s.36(2A) is itself defined in s.5(1) of the Migration Act. A common feature of each definition is that the harm be intentionally inflicted or caused. Thus:
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 [i.e. the International Covenant on Civil and Political Rights]
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”.
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:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)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.
(emphasis added)
The claims that were raised were dealt with by the Tribunal
Claims of psychological harm arising from the second applicant’s childless status
The Minister concedes that a claim arose on the material to the effect that the second applicant feared that she would suffer psychological harm[28] caused by her family members as a result of her childless status.
[28] the Tribunal was aware of the second applicant’s mental health problems
The Tribunal found that there was no real chance that the second applicant would suffer “persecution at the hands of her husband’s relatives for any reason”, including because she is a childless woman[29]. I accept the Minister’s submission that this was a finding of sufficient breadth to cover a claim that the applicant would suffer serious harm in the form of psychological harm.
[29] CB 993 [69]
The Tribunal also found that any harm that the second applicant might suffer as a result of her childless status (which would not in any event reach the threshold for any of the forms of “significant harm”) would “not result from acts of omissions by which pain or suffering is intentionally inflicted” or result from “conduct intended to cause extreme humiliation”[30]. The Tribunal referred to the evidence which indicated that the behaviour of others “is not intended to cause pain or suffering or extreme humiliation” and that in most cases “such mistreatment is thoughtless and insensitive conduct arising from ignorance …”. The Tribunal also expressly stated that it was not satisfied that the “element of intention in the infliction of the harm is present”[31]. Given the Tribunal’s finding of an absence of intention to cause harm[32], the Tribunal was entitled to conclude that the applicant did not face a real risk of suffering significant harm (in the form of psychological harm) by virtue of her childless status.
[30] CB 994 [71]
[31] CB 994 [71]
[32] A common feature of each relevant definition of significant harm is that the harm be intentionally inflicted or caused
There was also a material credibility issue. The Tribunal, in making the findings referred to in the preceding paragraph, expressed considerable doubts about the second applicant’s claim that she had been physically harmed by her husband’s family[33] and also rejected her claim that she had been attacked in her house[34]. Further, the Tribunal concluded that the first applicant would not be at risk of either significant or serious harm by reason of his childless status.
[33] CB 993 [68]
[34] CB 993 [70]
Claims relating to the second applicant’s religion
The Minister also concedes that a claim was raised on the material that the second applicant had been harmed by her in-laws for refusing to convert to the Ahmaddiya religion[35]. As previously noted, the Tribunal expressed considerable doubt that this incident occurred and concluded that the second applicant would not suffer serious harm or significant harm at the hands of her in-laws by reason on the fact that she was not an Ahmadi[36].
[35] CB 558 [2] (referred to in the applicant’s submissions at [6.3])
[36] CB 993 [69]
Other matters raised by the applicants, both before the Tribunal and this Court, had a humanitarian dimension which the Minister could have regard to if he were so minded, but are beyond the scope of this proceeding.
Conclusion
The applicants have failed to establish that the decision of the Tribunal was affected by any jurisdictional error. The decision is therefore 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-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 November 2015
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