FEDERAL COURT OF AUSTRALIA

SZQES v Minister for Immigration and Border Protection [2017] FCA 1440

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s cost of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 27 June 2017. The primary judge dismissed the applicant’s application to review a decision of the Administrative Appeals Tribunal (the Tribunal) dated 21 June 2016. The Tribunal affirmed a decision of the delegate of the first respondent to refuse the appellant a Protection (Class XA) visa.

2    The appellant is a citizen of Bangladesh who arrived in Australia on 8 June 2010 as the holder of a visitor visa. On 21 June 2010, the appellant applied for a Protection (Class XA) visa. The visa was refused by a delegate of the Minister. That decision was affirmed by the Refugee Review Tribunal (“the Tribunal”) on 5 April 2011.

3    The appellant made a further application for a protection visa on 25 October 2012 on the basis of a claim for complementary protection under the Migration Act 1958 (Cth) (the Act). The appellant claimed to fear harm from the Awami League political party due to his involvement with the Bangladesh Nationalist Party (BNP). He claimed that he had been threatened, beaten, had his house attacked and a false case filed against him by members of the Awami league. On 2 December 2014, the first respondent’s delegate refused to grant the appellant a protection visa.

4    The appellant then applied to the Refugee Review Tribunal for review of the delegate’s decision. On 21 June 2016, the Tribunal affirmed the decision under review.

5    The Tribunal noted that the appellant’s claims were essentially the same as those expressed in his original application for a protection visa. The Tribunal found that there were reasons to doubt the appellant’s claims that he was a BNP activist and had suffered harm from the authorities and the Awami League as a result. The Tribunal identified a number of inconsistencies in the appellant’s evidence. The Tribunal also considered documentary evidence from the Australian branch of the BNP. While the Tribunal did not rule out the possibility that the appellant had some form of contact in Australia, it was not satisfied that this reflected any genuine commitment to the BNP. The Tribunal was not satisfied that such contact would place the appellant at risk on his return to Bangladesh nor that any significant weight should be placed on the supporting letters he submitted on that issue.

6    The Tribunal considered a psychologist report from 2013 that the appellant had placed before the Tribunal. The psychologist diagnosed the appellant as suffering from stress. The Tribunal found as follows:

35.     I note that among the documents submitted to the Department and the Tribunal by the Applicant is a psychological report from 2013 which diagnoses him as suffering from stress over his application, his separation from his family, his financial situation and his health. He has not claimed that these difficulties have hindered him in presenting his protection claims, however, and, having had the opportunity to observe him at the Tribunal hearing, I consider that he was able to understand the questions put to him, respond to them, articulate his claims and otherwise participate effectively in the proceedings.

7    The Tribunal went on to conclude:

36.     Having considered the Applicant's claims, individually and cumulatively, I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act because of a political involvement with the BNP or its associated Chatradal, either in Bangladesh or in Australia. Specifically, I am not satisfied there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment. He has not raised any other matters which would be relevant to an assessment of Australia's complementary protection obligations in his case.

8    Before the Federal Circuit Court, the appellant relied upon the following grounds of his application:

1.     The Second Respondent made jurisdictional error by ignoring a relevant consideration namely the psychological condition of the Applicant.

2.     The Second Respondent made jurisdictional error by failing to consider whether any stress suffered by the Applicant affected his ability to give evidence.

3.     The Second Respondent made jurisdictional error at [24] by failing to comply with the requirements of sections 424 and 424AA.

Particulars:

To be supplied upon receipt of the Transcript.

9    During the hearing, the Federal Circuit Court identified another possible ground, namely, that the Tribunal had failed to consider the applicant’s claim for protection on the basis of religion.

10    The primary judge found as follows:

Ground 1

21.    On the face of the material before the Court, the applicant had a real and meaningful hearing. In relation to ground 1, I accept the first respondent’s submission that the documentary evidence was insufficient to show the applicant was unfit to give evidence and present arguments at the hearing. There is no claim advanced that the applicant claimed to fear harm because of his psychological condition. On the basis of the material before the court the Tribunal complied with its obligations under s.425 of the Act and complied with the obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out by ground 1.

Ground 2

22.    In relation to ground 2, for the reasons given it is incorrect to suggest that the Tribunal failed to take into account the applicant’s psychological condition. It was open to the Tribunal to make such a finding in respect of the applicant’s ability to participate in the hearing. For the reasons earlier given, I am satisfied the applicant had a real and meaningful hearing. No jurisdictional error is made out by ground 2.

Ground 3

23.    In relation to ground 3, no particulars were provided identifying any information enlivening obligation under s.424A of the Act. The written submissions filed on behalf of the applicant do not identify any information enlivening any such obligation. No jurisdictional error is made out by ground 3.

24.    The written submissions filed on behalf of the applicant seek to take issue with the adverse credibility findings. On the face of the Tribunal’s reasons, the adverse credibility findings were the subject of reasonable, rational and logical grounds and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out in that regard.

25.    Further, in relation to the letters provided in support of the applicant’s claims, it was a matter for the Tribunal to determine what weight to give those letters. No jurisdictional error is made out by the submissions.

Whether a claim to fear harm in respect of religion that should have been the subject of findings

26.    In the course of the hearing, the Court raised with Ms Hillary, the solicitor for the first respondent, that the reference to the letter in the Tribunal’s reasons in paragraph 16 suggested that the applicant had a claim to fear harm under a ground of religion. The Court identified that on one view, this could be nothing more than a quote from the actual letter and on the face of the applicant’s statement, it is not apparent that the applicant raised any such claim. However, the Court was concerned that the applicant should have the opportunity to provide any amended application and put forward any further submissions in that regard, but otherwise proposed to reserve its decision.

27.    Pursuant to orders made on 29 May 2017, Mr Zipser of counsel provided submissions on 9 June 2017 alleging the following additional ground of jurisdictional error:-

The applicant claimed to the Department and to the Administrative Appeals Tribunal (“the AAT”) that he feared persecution on grounds of religion. The AAT expressly disregarded this claim, and failed to make findings resolving the claim. This was a jurisdictional error by the AAT.

Consideration of the additional ground

28.    Mr Zipser of counsel argued it was open to the Court to find that the applicant advanced a fear of persecution on the grounds of religion and by the failure of the Tribunal to deal with that claim fell into jurisdictional error. Mr Zipser of counsel properly pointed out the difficulties that the Tribunal had with the submissions advanced on behalf of the applicant that appeared to address matters and a country extraneous to the applicant’s claim and that this was expressly addressed in footnote 1 to the Tribunal’s reasons.

29.    Mr Zipser of counsel drew attention to the notation in the Tribunal’s reasons that there was nothing in the applicant’s evidence to suggest that he fears harm in Bangladesh on the grounds of religion and that accordingly, the Tribunal had disregarded that aspect of the written submission in respect of the applicant’s claims. The first respondent filed written submissions in answer on 23 June 2017.

30.    I accept the first respondent’s submission that the Tribunal correctly identified the applicant’s claims in its reasons and that the applicant confirmed that he did not fear harm in Bangladesh for any other reason. Accordingly, it was open to the Tribunal to disregard the parts of the applicant’s submissions that he feared harm on the ground of religion for the reasons given by the Tribunal. I accept the first respondent’s submission that no claim that the applicant feared harm on the grounds of religion was advanced by the applicant and that no such claim arose on the material before the Tribunal. Accordingly, the Tribunal was not in error in failing to address a claim that was not advanced. No jurisdictional error as alleged in the additional ground is made out.

31.    Accordingly, the originating application must be dismissed.

11    The notice of appeal before this Court contains the following grounds.

1.     The trial judge erred in considering the phycological conditions of the appellant.

2.     The trial judge erred in considering that the appellant was failed to provide evidences due his stress before the Second Respondent.

3.     The trial judge erred in considering that the constructive failure of the Second Respondent in determining the claim of the appellant in regard to comply of 424 and 424AA of the Act.

(Errors in original.)

12    It may be noted that the grounds are similar to the grounds before the Federal Circuit Court, except that they refer to errors by the primary judge instead of the Tribunal.

13    As to the first and second grounds, it may be seen that the Tribunal expressly considered the psychological report submitted by the appellant. The Tribunal did not make any finding that the appellant had failed to provide evidence or was unable to provide evidence due to his stress in the hearing before the Tribunal. Further, there was no error on the part of the primary judge in failing to find that the appellant had failed to provide evidence before the Tribunal due to his stress.

14    As to the third ground of the notice of appeal, which alleges that the primary judge erred in failing to find that there was a constructive failure by the Tribunal in determining the appellant’s claim by failing to comply with ss 424 and 424AA of the Act, the ground is entirely unparticularised. There is no indication of what particulars the appellant says ought to have been provided by the Tribunal.

15    In written submissions, the appellant has raised a further ground: that his claim to fear persecution on the ground of religion was not considered by the Tribunal. He alleges that he is an adherent of Sufism, a branch of Islam, and fears persecution by other Muslims on account of his faith. He acknowledges that this claim was not made to the Tribunal. He says that he was too fearful of persecution by other Muslims to mention this claim to the Tribunal. However, as the claim was not raised before the Tribunal, there can be no error by the Tribunal in failing to take it into account.

16    In summary, the appellant has not demonstrated any error on the part of the Federal Circuit Court. The appeal must be dismissed with cost.

Associate:    

Dated:    4 December 2017