SZVYD v Minister for Immigration

[2017] FCCA 2909

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVYD v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2909

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal denied the applicant’s request for an adjournment so he might place further evidence and arguments before it.

Legislation:

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Minister for Immigration & Citizenship v SZNWC (2010) 190 FCR 23
House v The King (1936) 55 CLR 299

Applicant: SZVYD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3655 of 2014

Judgment of: Judge Cameron

Hearing date: 4 October 2017

Date of Last Submission: 4 October 2017

Delivered at: Sydney

Delivered on: 4 October 2017

REPRESENTATION

Solicitors for the Applicant: Mr C. McArdle of McArdle Legal

Solicitors for the Respondents: Mr A. Moss of Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,994.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3655 of 2014

SZVYD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh who arrived in Australia on     24 December 2002 holding a student visa.  On 13 June 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Bangladesh. On 5 March 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”).                  The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were summarised by the Minister in his written submissions as follows:

   4.The applicant claimed that if returned to Bangladesh, he would be harmed and mistreated by police, his family, and society generally, as he is a Muslim and would drink alcohol in contravention of Bangladeshi law. The applicant claimed he had developed alcohol dependence and had been drinking to excess since the end of 2004.

   5. In further written statements, the applicant and his representative claimed that the applicant’s dependence on alcohol began as a result of his time in [Detention Centre] and stress placed on his relationship with his wife as a result of work restrictions placed on a prior visa held by the applicant…the applicant stated that he was “dependent on alcohol”, would “not be able to stop drinking”, “will find a way to buy alcohol even if it means stealing” and would “commit suicide” if he could not.

   6.The applicant feared that he would be arrested if he was found drinking or smelling of alcohol by Bangladeshi authorities ... and would be unable to pay a bribe to the police to secure his release.

   7.     The applicant also feared that if he was found publicly consuming alcohol or publicly intoxicated by members of “Jamaat-e-Islamid” (a conservative Islamist political party) he would be harmed or killed, as alcohol consumption is in contravention of shari’ah;

   8.The applicant also claimed that his alcohol consumption caused problems with his family … he would not be accepted by his own family … “would be unable to find employment” and would be “shunned” by society in Bangladesh. (References omitted)

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal accepted the applicant’s claim to be an alcoholic and considered his application on the basis that he would continue to consume alcohol if he returned to Bangladesh. The Tribunal did not accept that the applicant would be treated particularly harshly by law enforcement authorities for not being a “proper Muslim”, noting there was no objective evidence to support that claim;

   b)the Tribunal did not accept submissions made by the applicant’s representative that the Intoxicant Control Act 1990 (“IC Act”) was not a law of general application as it was targeted at a minority of the population who want to drink.  In this connection, the Tribunal found that any punishment administered to the applicant under the IC Act would not constitute Contravention-related persecution, rather, such punishment would be a penalty imposed under a law of general application;

   c)the Tribunal also considered, in the alternative, that to the extent that the relevant law in Bangladesh does discriminate against a section of the population, the law was nonetheless appropriate and adapted for a legitimate purpose;  

   d)the Tribunal accepted as possible the applicant’s claim that if he were known to have consumed alcohol or to be drunk, he might be viewed by strict Muslims as not being a true Muslim.  The Tribunal was not satisfied however, on the basis of the information before it, that there existed a real chance that the applicant would face harm from vigilante or Islamist groups, including Jamaat-e-Islami, as a consequence of being known to consume alcohol. In this regard, the Tribunal considered the country information provided to it by the applicant’s representatives about vigilante killings in Bangladesh but noted that the reports did not refer to specific cases of people being harmed by vigilante or Islamist groups because they had consumed alcohol.  The Tribunal noted that it had been unable to locate any other sources which reported alcoholics having been targeted for harm by such groups. The Tribunal found the applicant’s fears in this regard to be speculative and based on supposition;

   e)the Tribunal considered the applicant’s claims that he might be rejected by friends and family and be homeless and unable to find employment because of his alcohol dependency should he return to Bangladesh. The Tribunal accepted the applicant might experience such difficulties if he were to return to Bangladesh, however, it was not satisfied that any harm he might encounter in this regard would be motivated by any Convention reason and be sufficiently serious that it would constitute persecution; and

   f)with regard to whether the applicant faced a real risk of significant harm in Bangladesh, the Tribunal did not accept that there was a real risk that the applicant would be charged in relation to the consumption of alcohol or that he would be subjected, in prison or in custody, to conditions that might constitute significant harm. The Tribunal was also not satisfied that the ostracism the applicant claimed he would face in Bangladesh would constitute significant harm. 

Proceedings in this Court

1. In his further amended application the applicant alleged:

   1.The Refugee Review Tribunal has failed to apply the correct test at law in respect of a law of general application.

   Particulars

   The Refugee Review Tribunal has, at paragraph [28] of the decision, failed to apply the reasoning of Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per McHugh J by finding that the law relating to alcohol consumption in Bangladesh is a law of general application on the basis that it applies to “all Muslims” despite the law being discriminatory and enforced in a discriminatory manner.

   2.The Refugee Review Tribunal has failed to apply the correct test at law in respect of a law of general application.

   Particulars

   The Refugee Review Tribunal has, at paragraph [28] of the decision, failed to apply the reasoning of Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per McHugh J by failing to apply the correct test of whether the law is appropriate and adapted to achieving a legitimate object.

   3.The Refugee Review Tribunal has failed to apply the correct test at law in respect of a law of general application and/or section 91R of the Migration Act 1985 (Cth).

   Particulars

   The Refugee Review Tribunal has, at paragraph [29] of the decision, failed to apply the reasoning of Applicant A v minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per McHugh J and/or section 91R of the Migration Act 1958 (Cth) by finding that the law relating to alcohol consumption in Bangladesh is appropriate and adapted to a legitimate object in circumstances where the law only applies to Muslims in Bangladesh.

   4.The Refugee Review Tribunal, despite the obligation to permit the Applicant to give evidence, denied the Applicant that opportunity.

   i.     Page 28 of transcript of proceedings and page 35 of transcript of proceedings of the Tribunal on 3 December 2014.

   ii.Inter alia, Sections 414, 420, 424, 425, 427 of the Migration Act 1958 (Cth).

   iii.     Matter of Applicant NAFF of 2002 and Minister for Immigration and Multicultural and Indigenous Affairs and Another [2004] HCA 62.

Grounds 1, 2 and 3

1. The first three grounds of the application can be addressed as a group.  In general terms, a law which has general application and does not expressly discriminate against a person or a particular social group does not provide a basis for protection under the Convention.  However, like all generalisations, there are exceptions.  Relevantly, for this case such an exception is that a law of general application can discriminate against a particular social group, even if not expressly addressed to a group, because it nevertheless impacts differentially on that group: Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 at 301 [21].

2. Even so, such a law does not engage Australia’s Convention-related protection obligations if it is appropriate and adapted to some legitimate object of the country in question: Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 258, Minister for Immigration & Citizenship v SZNWC (2010) 190 FCR 23 at 34 [47].

3. At para.26 of its reasons the Tribunal set out the relevant substance of the IC Act in the following terms: 

   The Bangladeshi Intoxicant Control Act 1990 is stated to be “An Act made to provide for control of intoxicants and cure and rehabilitation of alcoholics”. It provides that no person except the holder of a licence issued under the Act may produce alcohol; no person except the holder of a permit issue under the Act may consume alcohol; and no Muslim may be granted a permit to consume alcohol except on medical reasons. It provides that the government shall establish at least one Intoxication Cure Centre, and it may declare any hospital or “medical centre provided with a jail-hospital” an Intoxication Cure Centre. It provides that “When the Chief-Director or an officer authorized by him in this behalf gets information of someone being, because of being addicted to intoxicants, frequently in his behaviour out of the natural way and therefore, in order to bring him back to a natural way of life, being in need of a cure without any further delay, then the aforementioned authorities may, by a notice in written form, order the intoxicated person to commit himself to the charge of a physician or to a Intoxication Cure Centre within seven day after receipt of the notice. It provides that the punishment for offences involving alcohol, apart from its unlicensed production, is imprisonment of up to one year or a fine not exceeding 5000 Takas.

4. It went on to find at para.28 that the IC Act was a law of general application, saying: 

   I find that the law relating to alcohol consumption in Bangladesh is a law of general application. It applies to all Muslims (except for those with a medical dispensation). The overwhelming majority of the population of Bangladesh is Muslim.

   I see no error in that characterisation.  However, as foreshadowed, that is not the end of the issue.

5. I accept that as the applicant is an alcoholic, the IC Act would probably have a greater impact on him than on others in Bangladesh, were he to return.  However, that fact alone is insufficient to find that the IC Act had a persecutory effect or operation.  The IC Act did not seek to single the applicant out personally and so was not persecutory in that sense. However, it could have been persecutory if, in its operation, it discriminated against a group of people of which the applicant was a member.

6. Paragraph 13 of the Tribunal’s reasons recorded that the applicant’s representative submitted at the Tribunal hearing that the IC Act was discriminatory in that it targeted the minority of the Bangladeshi population wanting to drink alcohol.  The Tribunal acknowledged the possibility that the IC Act was indeed discriminatory but at para.20 of its reasons found that that Act was appropriate and adapted to advancing legitimate objects, namely, the control of intoxicants and the cure and rehabilitation of alcoholics, all in the context of the majority Muslim nation.  Applying the approach described by Perram J in Minister for Immigration & Citizenship v SZNWC at 32 [40], I conclude that no error attaches to that conclusion.  I therefore find that no error attaches to the Tribunal’s further conclusion at para.30 that:

   … any punishment administered to the applicant under the Intoxicant Control Act would not constitute Convention persecution.  It would be a penalty imposed under a law of general application; alternatively, to the extent that the law discriminates against a section of the population, the law is nonetheless appropriate and adapted for a legitimate purpose.

7. For those reasons, grounds 1, 2, and 3 are not made out.

Ground 4

1. The fourth ground of the further amended application relates to two occasions during the Tribunal’s hearing when, the applicant alleges, the Tribunal denied him his right to place before it information which he wished it to consider in the context of his claims for protection.

2. The first concerned the exchanges between the Tribunal and the applicant’s representative, Ms Ford, recorded in the following passages of the Tribunal transcript:

   Ms Ford:     In addition to that the applicant has lodged his application for his medical report from Royal North Shore Hospital, that’s the front sheet of the submission and it should be released within a month. So the receipt date on that is [date] November 2014. So I’d be asking you to wait before you make a decision. So that I could lodge that.

   Tribunal Member:          What’s that going to tell me, that I don’t already know?

   Ms Ford:     Well I suppose it would be referring to his evidence related to his drinking. His diagnosis, there will be a medical report confirming the [sic].

   Tribunal Member:          If I accept that he is an alcoholic. Okay was there any other evidence that you wanted to give? Any other questions you want to ask?

   Ms Ford:     No.            

3. There the Tribunal implicitly declined a request to delay its decision pending receipt of a medical report.  Two issues arise in connection with this. The first is whether the applicant suffered substantial unfairness because information relevant to his case did not come before the Tribunal.  Such an allegation has not been made out because the report in question was not tendered in this proceeding and so, from the Court’s perspective, the applicant’s contention is merely speculation.  Further, whether the alleged unfairness concerned the IC Act’s impact on the applicant were he to return to Bangladesh (regardless of the irrelevance of his individual circumstances to questions relating to the operation of the IC Act) or how the Bangladeshi community would treat him (again regardless of the Tribunal’s findings that country information did not support the applicant’s fears in that connection), the medical report would not be materially relevant to the Tribunal’s deliberations related to such matters. 

4. The second issue concerns potential miscarriage of the Tribunal’s discretion whether to delay the delivery of its decision. The applicant conceded in addresses that the Tribunal had not been told that the medical report might have addressed issues going beyond whether he was an alcoholic.  No other matters suggest that a House v The King (1936) 55 CLR 299 miscarriage of discretion occurred when the Tribunal implicitly declined the request to delay delivery of its decision.

5. The second alleged occasion when the Tribunal declined to accept material from the applicant was recorded at lines 1117 to 1158 of the transcript:

   Tribunal Member:      Sorry to interrupt you, I just wanted to try and make clear that I understood what you were saying. Okay. Are you saying that in prison he will be subjected to –

   Ms Ford:     Harsh inhumane treatment. They’re overcrowded and dangerous diseases rage. Prisoners beat each other up, nobody protects them.

   Tribunal Member:     So this is in relation to the refugees provisions [or] the complimentary protection provisions?

   Ms Ford:     Both. He’ll be persecuted in prison by the prisoners. He will not be protected by the State. If you don’t have the money to pay the bribes that are required to be looked after.

   Tribunal Member:     So in terms of the Refugees Convention, what’s the convention reason for the mistreatment in prison?

   Ms Ford:Well everybody in prison is mistreated in Bangladesh. We can prevent that from happening to this man, we can keep him here. Just because it happens to every prisoner that’s locked up there it doesn’t mean that it’s right, a right thing to allow to happen to allow him to go back there.

   Tribunal Member:      But that’s not to the point though. The question is whether it is Convention persecution or whether it’s significant harm as defined in the complementary protection provisions, whether it’s right or wrong is not to the point, clearly it’s not right.

   Ms Ford:     It’s complementary.

   Tribunal Member:      So which of the particular forms of significant harm are you suggesting, cruel or inhuman treatment or punishment?

   Ms Ford: Sorry what was that, I need to have it in front of me.

   Tribunal Member:      You mentioned harsh and inhumane treatment so you’re suggesting cruel or inhuman treatment or punishment?

   Ms Ford:                 I would like actually, I would like a week to prepare a submission, a short written submission addressing –

   Tribunal Member:      Well Ms Ford you’ve been on notice of the issues for more than a year.

   Ms Ford: I wasn’t expecting the questions that you’re putting to me.

6. Notwithstanding the applicant’s submissions to the contrary, I read that passage to mean that the applicant’s representative sought additional time to lodge submissions on the applicant’s complimentary protection claims.  A distinction can be drawn between this and the other passage, not only on a textual basis, but also because the applicant sought one week for these submissions and a month or so in relation to the medical report.  The applicant’s representative advanced little in support of her application for further time in relation to additional submissions. 

1. The Tribunal expressed its reasons for not acceding to her request at para.17 of its decision record where it said: 

   The applicant’s adviser requested further time to make a written submission, but this was declined on the basis that the hearing had raised no new issues; she had been on notice of the relevant legal and factual issues since the delegate’s decision was made; she had provided extensive written submissions on the day of the hearing; and she was permitted to make oral submissions at the hearing.

   I discern no miscarriage of discretion attaching to this aspect of the Tribunal’s hearing.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated and consequently the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  24 November 2017