FEDERAL COURT OF AUSTRALIA
SZUUZ v Minister for Immigration and Border Protection [2015] FCA 624
IN THE FEDERAL COURT OF AUSTRALIA | |
Appellant | |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
2. The appellant is to pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 220 of 2015 |
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA |
BETWEEN: | SZUUZ Appellant |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
JUDGE: | SIOPIS J |
DATE: | 26 MAY 2015 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 This is an appeal from the decision and orders of a judge of the Federal Circuit Court of Australia of 23 February 2015.
2 The appellant, a Buddhist monk, made a claim for a protection visa on the grounds that he had a well-founded fear of persecution for a Convention reason by reason of him being a Buddhist in Bangladesh. The application was refused by a delegate of the first respondent. The Refugee Review Tribunal (the Tribunal) affirmed the delegate’s decision, finding that the appellant was not a person to whom Australia owed protection obligations in relation to an application for a protection visa. The appellant brought an application in the Federal Circuit Court for judicial review of the Tribunal’s decision.
3 The appellant relied on one ground of review before the Federal Circuit Court. This related to the appellant’s claim before the Tribunal that he was more vulnerable to persecution by Muslim fundamentalists in Bangladesh, because in addition to being a Buddhist monk, he was also the author of three published books on Buddhism. The ground of review was as follows:
1. The Tribunal accepted that the applicant, in addition to being a practising Buddhist, “has published three books in relation to Buddhism”: see paragraph 37 of Tribunal’s decision. The Tribunal also accepted that there were occasional instances of violence against Buddhists in Bangladesh. The Tribunal should have considered whether the applicant faced a heightened risk of harm because he was an author of religious texts. The Tribunal failed to consider this issue, which is a jurisdictional error.
4 The primary judge dismissed the appellant’s application for judicial review.
5 The primary judge found that the Tribunal had, in fact, had regard to that particular element of the appellant’s claim and, therefore, found the Tribunal had not fallen into jurisdictional error. The primary judge went on to summarise the Tribunal’s decision and pointed out that the Tribunal had made adverse credibility findings in relation to the appellant’s claim. These findings were founded on, among other things, the Tribunal’s perception of the way in which the appellant responded to questions at the hearing; and also on the Tribunal’s finding that the appellant sought to put false documents before the Tribunal. The primary judge found that the adverse credibility findings were open to the Tribunal.
6 The appellant did not appear in Court today when the matter was called.
7 On the day before this hearing, the Court received a letter from the appellant which said:
I refer to letter dated 27 April 2015 to attend the hearing in the federal court on 26 May 2015 at 10:15 am. I’m seriously sick for cost few days. I shall not be able to attend hearing day.
Please grant me another date of hearing after four (4) weeks.
8 The letter was not accompanied by any medical certificate.
9 When I drew this letter to the attention of counsel for the first respondent at the commencement of the hearing today, counsel handed me a letter which her instructing solicitors had sent to the appellant on 18 May 2015. This letter advised the appellant that if he did not attend the hearing today, the first respondent would seek orders that the appeal be dismissed and that the appellant pay the first respondent’s legal costs of the proceeding.
10 Counsel for the first respondent applied for the appeal to be dismissed on the basis of non-appearance by the appellant. I am satisfied that the appellant was on notice of today’s hearing. In the absence of there being any medical certificate from the appellant supporting the appellant’s claim of being too sick to attend this hearing, I dismiss the appeal on the basis of the non-appearance of the appellant under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).
11 However, I will also address the merits of the appeal brought by the appellant.
12 The appellant relied on the following grounds of appeal:
1. The Federal Circuit Court Judge erred in law in deciding my application not finding that the Tribunal did not consider that I was not a victim of persecution for my religious belief as a member of Buddhist religion prior to my departure from Bangladesh.
2. The Honourable Federal Magistrate did not find that there was a lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal failed to consider that I was one of the authors of three religious books which contributed to me to suffer persecution prior to my departure from Bangladesh and my persecution was genuine and well founded. The Tribunal also did not consider me a credible witness.
3. The Honourable Judge made errors not considering the Tribunal’s failure to give me a reasonable opportunity to respond to independent evidence in the possession of the Tribunal which suggests that I shall not be a victim of harassment for my religious belief if returned to Bangladesh.
4. The Honourable Judge made error to find that the Tribunal failed to accept that the persecutions I experienced in Bangladesh were genuine and well founded and my life was under threat in Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I provided the evidences of my persecutions before the Tribunal at the time of my application and during hearing.
5. The Honourable Judge erred in not finding that the Tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of the Act of Protection visa.
6. The Honourable Judge erred in not finding that the Tribunal refused my application on the ground that I could be relocated in another part of the country where I would not be at real risk. The Tribunal failed to find that it is not possible for a person like to be relocated to other parts of Bangladesh as I shall be identified with my robe and name by the Muslims and I shall not be safe if relocated.
7. The Honourable Judge erred in law not finding that the Tribunal failed to consider that I was discriminated for my religious belief and I had very limited access to facilities provided by government. The Tribunal failed to consider that I shall be the victim of significant harassment for my religious belief if I return to Bangladesh now or in the foreseeable future and my persecution is Convention related.
13 The grounds of appeal were numbered two to eight in the notice of appeal, but I will deal with them in order.
14 There is no substance to the first ground of appeal because the primary judge correctly found that the Tribunal had considered whether the appellant had been a victim of persecution by reason of his religious belief as a Buddhist in Bangladesh and that the Tribunal had considered the matters referred to in the ground of review. This ground of appeal is dismissed.
15 The second ground of appeal is dismissed because there never was a ground of review before the primary judge based on the absence of procedural fairness. Therefore, the primary judge did not err in failing to make such a finding. Insofar as this ground of appeal complains about the Tribunal’s credibility findings, that same complaint is made in other grounds of appeal which I will deal with.
16 The third ground of appeal is also based on a complaint, which was not a ground of review raised before the primary judge. Accordingly, there was no error by the primary judge in failing to deal with this complaint.
17 As to the fourth ground of appeal, the primary judge observed that the Tribunal had determined that the appellant was not a credible witness. The primary judge found that it was open to the Tribunal to find that the appellant was not a credible witness. Credibility findings are matters within the peculiar domain of the Tribunal. The primary judge did not err in this respect. Accordingly, this ground of appeal is dismissed.
18 The fifth ground of appeal is, in effect, a repetition of the previous ground of appeal and is dismissed for the same reasons.
19 The sixth ground of appeal raises a complaint that was not before the primary judge and, therefore, the primary judge did not err in the respect complained of. This ground of appeal is dismissed.
20 The seventh ground of appeal also raises a complaint that was not part of the ground of review that was before the primary judge. Therefore, the primary judge did not err in failing to make the finding complained of. This ground of appeal is dismissed.
21 Accordingly, all of the grounds of appeal are dismissed. I, therefore, also dismiss the appeal on its merits.
22 The appellant is to pay the first respondent’s costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. |
Associate:
