SZVYV v Minister for Immigration

[2016] FCCA 471

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVYV v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 471

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

Legislation:

Migration Act 1958 (Cth), s.425
Federal Circuit Court Rules 2001 (Cth)

Applicant: SZVYV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 35 of 2015

Judgment of: Judge Driver

Hearing date: 3 March 2016

Delivered at: Sydney

Delivered on: 3 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Sangha of Mills Oakley

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 35 of 2015

SZVYV

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 11 December 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 of religious persecution.  Background facts relating to the applicant’s claims and the decision of the delegate and the Tribunal on them are set out in the Minister’s outline of legal submissions. 

2. The applicant arrived in Australia on a visitor visa on 22 August 2013 valid for one month[1] and he applied for a protection visa on 18 September 2013[2].

   [1] Court Book (CB) 41

   [2] CB 1-26

3. The applicant claimed to be a citizen of Bangladesh and to fear harm as a Buddhist.  In a statement accompanying his protection visa application, he detailed harm that he claimed he and his father experienced from Muslim extremists and members of the Bangladesh National Party (BNP) and specifically, a Mr ZH[3].

   [3] CB 27-33.  The name has been anonymised

4. The applicant claimed that his grandfather was a liberation fighter and fought against the Pakistani army for the liberation of Bangladesh. His father inherited “substantial” land from his grandfather and operated a business at the local market. His family became a target for Muslim fundamentalists including members of Jamat-e-Islami and the BNP who demanded money[4]. The applicant left school and went to Chittagong for his safety and his father was forced to close the shop[5].

   [4] CB 28

   [5] CB 29

5. In 2006, the applicant participated in demonstrations and meetings in order to “protect minorities” against the BNP-Jamat government.  The applicant was “warned” by Muslim terrorists not to participate in those activities.  The applicant returned home and participated in local organisations and activities against the BNP-Jamat[6].  In 2009, his family were targeted by Muslim fundamentalists and “other different political groups” who demanded money from his father’s re-opened shop.  The applicant claimed that on 11 November 2009, Mr ZH, the leader of a Muslim fundamentalist group demanded money from the applicant at his father’s shop but he refused. The applicant was “physically assaulted” and they threatened to take more action so the applicant took shelter at a Buddhist temple 25 kilometres from his house[7].

   [6] CB 29

   [7] CB 30

6. On 20 November 2009, Mr ZH demanded money from the applicant’s father.  His father refused so they “abused” him and left the shop.  The applicant’s father went to the police, political leaders and community leaders but no one assisted him[8].  On 28 July 2010, a fire broke out in the village market and his father was one of the shopkeepers blamed for the incident.  A warrant was issued for his father’s arrest so he went into hiding.  The abbot of the Buddhist temple advised the applicant to leave Bangladesh[9].  The applicant’s father handed himself to police in 2011 and was tortured then granted bail[10].

   [8] CB 31

   [9] CB 31

   [10] CB 31

7. The applicant travelled to India but moved around frequently because he feared capture by the Indian police as an illegal entrant[11].  The monks at the temple put the applicant in touch with someone who helped him obtain a false passport.  The applicant travelled to Thailand and Malaysia and then arrived in Australia[12].

   [11] CB 32

   [12] CB 32

The delegate’s decision

1. On 28 January 2014, a delegate of the Minister refused to grant the applicant a protection visa[13].  The Minister’s Department carried out an examination which found the applicant’s Indian passport was genuine and unaltered[14].  The delegate found that the applicant was a citizen of India on the basis of his Indian passport and found he had made no claims for protection against his country of nationality.  The delegate also found that the applicant was not a credible witness[15].

   [13] CB 64-77

   [14] CB 68

   [15] CB 72

The Tribunal’s decision

1. On 21 February 2014, the applicant applied to the Tribunal for review of the delegate’s decision[16].  On 27 November 2014, the applicant attended a Tribunal hearing and received the assistance of a Bengali interpreter[17].  The applicant provided medical documents at the hearing[18].

   [16] CB 80-84

   [17] CB 92-93

   [18] CB 94-120 and CB 125 at [14]

2. On 11 December 2014, the Tribunal affirmed the decision under review[19].  The Tribunal considered the applicant’s claims to be a national of Bangladesh and that he obtained his passport fraudulently through a broker organised by his temple leader in India. The Tribunal found that the department’s finding that the passport was a “legitimately manufactured document with no fraudulent alteration” was consistent with the applicant’s evidence that this was a genuine passport, fraudulently obtained[20].  The Tribunal found that the applicant gave credible information about his life and places of residence in Bangladesh.  The Tribunal had regard to the Bangladeshi identity documents to which the Tribunal gave some weight[21].  On the basis of “the evidence as a whole”, the Tribunal accepted that the applicant was a citizen of Bangladesh and his claims for protection were assessed against Bangladesh[22].

   [19] CB 121-131

   [20] CB 124 at [8]

   [21] CB 124, at [9]

   [22] CB 124, at [9]

3. In assessing the applicant’s claims against Bangladesh, the Tribunal found that the applicant had not presented a “credible account” of his circumstances and that there were “significant inconsistencies” between the claims in the statement submitted with his protection visa application and his oral evidence at the Tribunal hearing[23].

   [23] CB 125, at [12]-[13]

4. For example, the applicant omitted from his oral evidence that he was the subject of a “false case”[24].  Instead, the applicant’s evidence to the Tribunal was that a “false case” was made against his uncle and that his whole family were beaten after his father was captured by the police[25].

   [24] CB 126, at [18]-[19]

   [25] CB 126, at [17]

5. Further, the applicant’s evidence changed about the claimed perpetrator of harm. In his written statement, he claimed to fear harm from Mr ZH, a Muslim fundamentalist leader with links to the BNP.  However, in his oral evidence to the Tribunal he claimed that Maoists were responsible and that Mr ZH was a Maoist[26].  The applicant was unable to clarify whether Maoists or Muslim fundamentalists had caused problems for him[27].

   [26] CB 127, at [22]-[23]

   [27] CB 127, at [24]

6. The Tribunal also did not accept the applicant’s claims that he was financially supported by the Buddhist community in India or that they benevolently arranged his passport and trips to Thailand and Malaysia. The Tribunal found this cast “further doubt” on his overall credibility[28].

   [28] CB 128 at [30]

7. The Tribunal relied on independent country information and found that Buddhists do not face serious or significant harm in Bangladesh and were generally able to practice their faith without interference[29].

   [29] CB 129-130 at [37]

8. The Tribunal did accept that crime was a problem in Bangladesh and that the applicant’s family was robbed in 2001[30].  However, it was not satisfied that there was any Convention-related motivation for the robbery or the failure by the police to act.  It found that although there was some possibility that the applicant would be exposed to harm from criminal activity, it was not satisfied that this rose to the level of a “real chance or risk”[31].  In addition, the Tribunal accepted that Buddhists and Buddhist institutions were from time to time targeted but was not satisfied that such incidents occurred with sufficient frequency to result in a well-founded fear of persecution or a real risk of significant harm[32].

   [30] CB 130 at [40]

   [31] CB 130 at [40]

   [32] CB 131 [43]

9. The Tribunal found that the applicant did not raise any specific claims for protection under the complementary protection criterion and concluded that he did not have a well-founded fear of persecution or face a real risk of significant harm[33].  

   [33] CB 131 [45]

The present proceedings

1. These proceedings began with a show cause application filed on 6 January 2015.  There are three grounds in that application:

   1.The Tribunal did not consider that I am a citizen of Bangladesh though I have provided adequate documents as proof of my Bangladeshi citizenship which was not accepted by the Tribunal. I believe it is an error of jurisdiction.

   2. I have provided a number of documents in support of my claims. I tried to explain the reasons of my persecutions at the Tribunal. The Tribunal did not accept me as a credible witness and made errors of jurisdiction.

   3. I was persecuted as a member of Buddhist religious belief. It is evident that Buddhists are persecuted in Bangladesh. But the Tribunal did not consider that I have real chance of harm amounting to persecution if returned to Bangladesh and my persecution is not well founded for my religious belief. The Tribunal refused my application and made errors of jurisdiction.

2. The application is supported by an affidavit filed at the same time.  The affidavit is, in part, an assertion of facts and, in part, a submission.  I receive the affidavit on that basis. 

3. The applicant has not taken up the opportunity afforded by orders made by Registrar Morgan on 26 March 2015 for the filing of additional evidence or an amended application.  At the outset of today’s hearing, the applicant requested more time to file documents.  I refused that request on the basis that the applicant had already had ample time to file whatever he wished. 

4. I also have before me as evidence the court book filed on 11 February 2015. 

5. I invited oral submissions from the applicant and, for that purpose, discussed with him the grounds in his application.  It is plain that there is no substance in the first ground of review.  The ground is based on a false premise.  The Tribunal reversed a finding by the Minister’s delegate about the applicant’s nationality.  The Tribunal accepted that the applicant is a national of Bangladesh.  There is no error evident in relation to that part of the Tribunal’s decision. 

6. The third ground, as discussed with the applicant, also has no substance as a legal proposition.  The applicant disagrees with the Tribunal’s view about the risk faced by Buddhists in Bangladesh.  That disagreement, however, does not rise above a simple dispute over the merits of the Tribunal decision.  The second ground, as explained by the applicant during oral argument, relates to two issues.  The first concerns documents presented by the applicant in support of his claims.  In my opinion, the only documents bearing upon a dispositive issue before the Tribunal are those dealt with by the tribunal at [9] of its reasons[34].  It is apparent that while the Tribunal may have entertained doubts about those documents, it ultimately accepted them. 

   [34] CB 124

7. The second issue concerns the applicant’s asserted illness at the hearing conducted by the Tribunal.  That is dealt with at [13] of the Tribunal’s reasons[35]:

   There were significant inconsistencies between the claims put forward by the applicant in the statement submitted with his protection visa application, and with his oral evidence given at the Tribunal hearing.  The applicant sought to explain the [inconsistencies] on the basis that the written statement was prepared “a long time ago”, when he was in a composed frame of mind; now he is under a lot of pressure and is living in difficult circumstances, which means that he cannot recall all the details.  The applicant stated at the beginning of the hearing that he was not well; he said that he has a cough, congestion in the chest, and a fever.  He said that he has not sought medical treatment because he does not have a Medicare card.  I asked several times whether he wished to postpone the hearing, explaining that it was very important that he was able to give evidence properly; he stated clearly that he wanted to proceed with the hearing.  I offered him a brief adjournment to take some Panadol to reduce his fever, but again he declined.  The applicant did not appear to be particularly unwell during the course of the hearing although he coughed from time to time.  I am satisfied that he was capable of giving evidence and that the problems in his testimony were not the result of ill health on the day of the hearing, or of any particular stress or mental pressure that the applicant is under, other than the normal stress and anxiety associated with uncertain immigration status and a tribunal hearing.

   [35] CB 124

8. The applicant asserts some procedural unfairness or possibly a breach of s.425 of the Migration Act 1958 (Cth). However, in my opinion, the applicant has not advanced an arguable case of error in that regard.

9. The Tribunal satisfied itself that the applicant was fit to participate in the hearing.  Further, he was given the opportunity to seek an adjournment, but elected to continue.  Finally, the Tribunal took into account the asserted illness in considering the manifest credibility problems that emerged from the applicant’s oral evidence.  The Tribunal satisfied itself that the applicant’s asserted illness did not explain those numerous and serious credibility problems. 

10. From my own examination of the material, there is, in my view, no arguable case of jurisdictional error available to the applicant.

11. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

12. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

13. 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 (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 10 March 2016