SZWBK v Minister for Immigration

[2017] FCCA 434

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBK & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 434

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether in affirming the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa on the ground it was reasonable for the applicant to relocate within Bangladesh, the Tribunal incorrectly construed or misapplied s.36(2B)(a) of the Migration Act 1958 (Cth) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B)(a)

Cases cited:

SZTAV v Minister for Immigration and Citizenship[2007] HCA 40; (2007) 233 CLR 18

First Applicant: SZWBK

Second Applicant:  SZWBL

Third Applicant: SZWBM

Fourth Applicant: SZWBN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 278 of 2015

Judgment of: Judge Manousaridis

Hearing date: 25 February 2016

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers

Solicitors for the Respondents: Ms B Rayment of Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 278 of 2015

SZWBK

First Applicant

SZWBL

Second Applicant

SZWBM

Third Applicant

SZWBN

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE  REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants apply for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa).

2. The first applicant (applicant) is the only applicant who made claims for protection. The second applicant, who is the applicant’s wife, and the third and fourth applicants, who are their sons, applied as members of the same family unit of which the applicant is a member.

3. The applicants rely on one ground of review. They claim the Tribunal incorrectly construed or misapplied s.36(2B)(a) of the Migration Act 1958 (Cth) (Act). That paragraph is to be read with s.36(2)(aa) of the Act, which provides as a criterion for the granting of a Protection visa that the applicant is:

   a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has 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…

4. Paragraph (a) of s.36(2B) of the Act provides:

   However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm ...

Claims for protection

1. The applicant is a citizen of Bangladesh. In a statutory declaration on which he relied as part of his application for a Protection visa,[1] the applicant claimed that in 1996, after working in Libya, he started a shipping line business in Bangladesh (Business).

   [1] CB85-90

2. In 2009, after the Awami League became the governing party, “criminal miscreants associated with this party” started to extort money from the applicant and harass him. In August 2009 these people attacked the applicant and his elder son. The applicant reported the incident to the police, but the police took no action. The applicant sent his son to Australia to study because his son did not feel secure in Bangladesh.

3. In January 2009 one of the Business’s ships sank due to an accident. That caused financial losses to the applicant which required him to sell two ships. In November 2010 the applicant entered into a contract to sell two ships to a Mr SA. Mr SA was a close friend of an Awami League member of Parliament. Over the next year Mr SA failed to pay the money owing under the contract. That led the applicant to file a court case against Mr SA in November 2011.

4. In August 2012 Mr SA entered the applicant’s house “with some criminal” and forced the applicant to write on a stamped paper that the applicant had received from Mr SA all the money Mr SA owed the applicant. The applicant reported the incident to the police, but the applicant believes that the Awami League Parliamentarian friend of Mr SA telephoned the police and directed the police not to file any case against Mr SA.

5. The applicant further claimed that in December 2012 he received telephone calls in which threats were made that his youngest son would be kidnapped unless the applicant withdrew the complaint he had made to the police. The applicant further claimed Awami League supporters and “criminal miscreants” attacked the applicant in the street as a result of which the applicant sustained injuries; and the applicant received further threats from Awami League supporters after they located the address of the applicant’s youngest son’s new school.

Tribunal’s decision and reasons

1. The Tribunal accepted the applicant received threats, and that he had been attacked.[2] The Tribunal found, however, that the harm perpetrated against the applicant and his family was motivated by financial greed rather than the applicant’s race, religion, nationality, membership of a particular social group, or political opinion.[3] The Tribunal, therefore, concluded it was “not satisfied that the applicant has a well-founded fear of persecution for a Convention related reason in connection with the feared harm” from Mr SA and his associates.[4]

   [2] CB234-235

   [3] CB235, [14]

   [4] CB236, [14]

2. The Tribunal, on the other hand, was satisfied that, in light of the applicant’s continued pursuit of his case against Mr SA through the Bangladeshi courts, if the applicant were to return to Dhaka there is a real risk that Mr SA and his associates would again physically attack the applicant or his family.[5] The Tribunal, however, was also satisfied “that the applicants could reasonably relocate to another area of Bangladesh where there would not be a real risk of significant harm”.[6] In arriving at this conclusion, the Tribunal considered and made findings about the following:

   a)The Tribunal did not accept Mr SA would have the ability or motivation to track down the applicant throughout Bangladesh to compel the applicant to withdraw his court case.[7]

   b)Although the Tribunal accepted the applicant was well known because of his involvement in the shipping industry and an industry association, the Tribunal did not accept the applicant would be recognisable wherever he went in Bangladesh.[8]

   c)The Tribunal was satisfied the applicant could return and either not be involved with the shipping industry and work as an engineer as he previously did or in any other jobs as he did in Australia. Alternatively, the applicant could continue to manage the Business remotely “as he has done during the year and half that he has been in Australia”. The Tribunal was “not satisfied that his occupation would necessitate him being involved with the shipping industry in a way that would identify him to someone looking for him”.[9]

   d)Given the localised nature of the dispute between the applicant and Mr SA, and the large population of Bangladesh, there is no significant risk the applicant and his family will be harmed by Mr SA or his associates if they were to relocate to another large city in Bangladesh.[10]

   e)There are no legal impediments to internal relocation in Bangladesh.[11]

   [5] CB240, [33]

   [6] CB240, [33]

   [7] CB240-241, [35]

   [8] CB241, [37]

   [9] CB241, [38]

   [10] CB241-242, [39]

   [11] CB242, [41]

Parties’ submissions

1. The applicant submits the following passage of the Tribunal’s reveals jurisdictional error:[12]

   The Tribunal is satisfied that the applicant could return and either not be involved with the shipping industry and work as an engineer as he previously did or in other jobs such as he has been doing here in Australia (eg as a car mechanic). Alternatively, the applicant could continue to manage the business remotely, as he has done during the year and a half that he has been in Australia. The Tribunal is not satisfied that his occupation would necessitate him being involved with the shipping industry in a way that would identify him to someone looking for him.

   [12] CB241, [38]

2. In his written submissions, the applicant submits the Tribunal did not address the question whether it was reasonable to expect the applicant would be able to earn a living in Bangladesh (as opposed to Australia) in any way other than as a shipping agent, or whether he could conduct his business as a shipping agent outside of Dhaka. In oral submissions, Mr Jones, who appeared on behalf of the applicants, made a slightly different submission. Mr Jones accepted the Tribunal asked the applicant about his working outside Dhaka, but the Tribunal did not in reality engage with the question of whether it was reasonable to expect the applicant to work outside Dhaka, either remotely conducting the Business, or in some other occupation. Mr Jones submitted the Tribunal raised the issue of relocation with the applicant, but did not explore the issue, and it made its decision based on assumptions.

3. The Minister, on the other hand, submitted the Tribunal had regard to the matters the applicant submits the Tribunal overlooked. The Minister referred to the Tribunal’s enquiries about the applicant’s work experience in Libya and in Australia, and the absence of evidence to suggest there would be any adverse impact on the applicant and his family if they were to relocate.

Did the Tribunal apply the correct test and otherwise engage with the relevant question?

1. The Tribunal noted that the reasonableness of relocation provided for by s.36B(2)(a) of the Act was also relevant to whether a person is a “refugee”. The Tribunal referred to the High Court’s decision in SZTAV v Minister for Immigration and Citizenship,[13] and correctly stated the test for relocation stated in that decision, namely, that “whether relocation is reasonable, in the sense of ‘practicable’, must depend on the particular circumstances of the applicant and the impact upon that person of relocation within his or her country”.[14]

   [13] [2007] HCA 40; (2007) 233 CLR 18

   [14] CB240, [34]

2. That the Tribunal set out the correct test for relocation does not necessarily mean it correctly understood the test or correctly applied it. Whether or not the Tribunal did so depends in part on whether the Tribunal addressed the questions it ought to have addressed in applying the test of relocation it correctly identified. In the context of the complaint the applicant makes, that depends, in part, on whether the Tribunal asked the applicant questions that could reasonably be taken to have indicated the Tribunal understood that, when considering the reasonableness of the applicant’s relocating, it was relevant to consider whether it was reasonable to expect the applicant would be able to earn a livelihood in the place to which it is considered he should relocate.

3. The Tribunal asked questions of each of the applicant, the applicant’s wife, and one of the applicant’s sons that related to relocation. The following records what the Tribunal asked the applicant’s wife:[15]  

   [15] T35.20. The transcript is annexed to the affidavit of W David made on 14 January 2016.

   MEMBER: . . . I do have some concerns about, given that this seems to be a local issue, why you wouldn’t be able to return to another city.

   INTERPRETER: There’s a lot of ..(not transcribable).. in Bangladesh. This one .. (not transcribable)

   MEMBER: If you return to Bangladesh now, what would be your family’s financial situation?

   INTERPRETER: Yeah, this is .. (not transcribable) .. because we do not have anything .. (not transcribable)..

   MEMBER: Because sorry, we don’t have anything?

   INTERPRETER: .. (not transcribable)..

4. The question the Tribunal asked one of the applicant’s sons, and the answers the son gave, is as follows:[16]

   MEMBER: Why do you think your father couldn’t return to Bangladesh and live in a different city from [Mr RA]?

   INTERPRETER: It’s, it’s since ..(not transcribable) ..to Bangladesh. In Bangladesh, it’s hard to find a place ..(not transcribable) ..involved in politics, they’ve got eyes everywhere. It’s ..(not transcribable).. because business ..(not transcribable).. lots of people ..(not transcribable).. The ship was the reason the people know my father. So if he ..(not transcribable)..

   [16] T.36.45-T37.0

5. The questions the Tribunal asked, and the answers the applicant gave, are as follows:[17]

   [17] T37.35

   MEMBER: In relation to the evidence that your son gave about your prominence in other cities because of your business, do you think that you could return to another city and not run your shipping business? So for example, previously you worked both in Bangladesh and in other cities as a mechanical engineer. Could you do that again?

   INTERPRETER: Yeah, I can’t do this because I actually did ..(not transcribable).. so many people know me ..(not transcribable)..

   MEMBER: What, sorry?

   INTERPRETER: ..(Not transcribable).. If you go to that association ..(not transcribable).. see my picture ..(not transcribable)..

6. In my opinion, the questions the Tribunal asked of the applicant’s wife, the applicant’s son and the applicant indicate the Tribunal was aware of the relevance to the question of the reasonableness of relocation whether the applicant would be able work in a city or region outside Dhaka; and by asking those questions, the Tribunal attempted to obtain information relevant to determining whether it was reasonable to expect the applicant to conduct the Business remotely or to pursue another occupation outside of Dhaka.

7. There are not insignificant gaps in the transcription of the answers given by the applicant, his wife, and his son. From what has been transcribed, however, it is apparent that none of the applicant’s wife, the applicant’s son, or the applicant said the applicant would be unable to conduct the Business remotely from a place outside of Dhaka, or that he would be unable to earn a living by pursuing another occupation. The applicant’s wife did say it would be difficult to live in a city other than Dhaka because the applicants have nothing, but that answer did not address whether the applicant would be able to conduct the Business from a place outside Dhaka or engage in any other occupation. The applicant and his son both said the applicant could not relocate. But the reason both gave was not that the applicant would be unable to conduct the Business remotely or find another occupation; they said those who harmed the applicant would find the applicant wherever he may relocate. That evidence reflects the submission the applicant’s representative made to the Tribunal.[18]

   [18] CB177-180, [104]-[114]

8. In my opinion, the Tribunal asked questions that were intended by the Tribunal to elicit from the applicants such evidence that could have showed or intended to show it would be unreasonable for the applicant to relocate within Bangladesh because the applicant would be unable to conduct the Business remotely or to find another occupation if the applicant were to relocate. The applicants, however, gave no such evidence. Given the absence of evidence from the applicants specifically on that question, the Tribunal considered other evidence that, in my opinion, it was reasonably open to it to consider when determining that question.

9. In these circumstances, I do not agree with the applicants’ submission that the Tribunal failed to engage with the question of whether it was reasonable to expect the applicant would be able to conduct the Business remotely or pursue a different occupation if he were to relocate within Bangladesh.[19] In my opinion, the Tribunal arrived at its conclusion that the applicant could relocate from Dhaka to other areas of Bangladesh and conduct the Business remotely or carry on another occupation after the Tribunal considered whether it would be reasonable for the applicant to do so. It follows, therefore, that, on a fair reading of its reasons, the Tribunal concluded it would be reasonable for the applicant to relocate from Dhaka to other areas of Bangladesh and conduct the Business remotely or carry on another occupation.

   [19] CB177-180, [104]-114]

Conclusion and disposition

1. The Tribunal understood and correctly applied s.36(2B)(a) of the Act to the circumstances of the applicants’ claims. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 10 March 2017