FEDERAL COURT OF AUSTRALIA

SZRSC v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 819

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal as agreed or assessed.

3.    The first respondent’s name is changed to “Minister for Immigration, Multicultural Affairs and Citizenship.

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

REASONS FOR JUDGMENT

introduction

1    The appellant has appealed the decision of the Federal Circuit Court of Australia (“the FCC”) in SZRSC v Minister for Immigration and Citizenship and Anor [2013] FCCA 121. The FFC dismissed the appellant’s application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) which upheld the decision of a delegate of the first respondent (“the Minister”) to refuse the appellant a Protection (Class XA) visa pursuant to s 65 of the Migration Act 1958 (Cth).

The application for A protection (CLASS XA) visa

2    The appellant is a citizen of Bangladesh and a Hindu. He arrived in Australia in May 2011 and applied for a Protection (Class XA) visa on 27 June 2011. In his application he claimed that he had worked as a welder in Singapore for periods of time between 1999 and 2009 and, using money that he earned in Singapore, his wife bought land in Bangladesh in May 2009 before the appellant returned to Bangladesh. The appellant claimed that when he and his family went to occupy the land on his return to Bangladesh, the previous owner denied selling it and a dispute over the land turned into a religious dispute between Hindus in the village who supported him and the local Muslims. The appellant claimed that in March 2011 Muslims had come to his house, beaten him and his family, injuring his daughter and ransacked the house. He claimed that he had attempted to make a complaint to police but that they refused to accept his claim. He also claimed that on his way home from the police station, Muslims had attacked and beaten him. He claimed that he was afraid to return to Bangladesh because the Muslims might kill him. He claimed that he took his family to Dhaka in order to avoid further attacks and left them there when he travelled to Australia in May 2011.

3    The appellant attended an interview with a delegate of the Minister on 11 August 2011. The appellant provided documents to support his claims as well as photographs and internet news articles about the situation for Hindus in Bangladesh.

4    On 14 October 2011 a delegate of the Minister refused to grant the appellant a Protection (Class XA) visa. The delegate was of the opinion that irrespective of state protection in Bangladesh the appellant could return to Bangladesh and reside in safety. The delegate considered that the appellant could relocate to another part of Bangladesh to avoid harm from the people involved in the land dispute. The delegate was not satisfied that the appellant had a well founded fear of persecution as a Hindu in Bangladesh or was owed protection obligations. The delegate was accordingly not satisfied that the appellant was a person to whom Australia has protection obligations for the grant of a Protection (Class XA) visa.

The tribunal

5    On 9 November 2011, the appellant lodged an application with the Tribunal to review the delegate’s decision. He was invited to attend a hearing before the Tribunal scheduled for 2 April 2012. The appellant accepted that invitation and attended and gave evidence at the hearing.

6    The reasons of the Tribunal for upholding the decision of the Minister’s delegate to refuse the appellant a Protection (Class XA) visa set out in considerable detail the claims made by the appellant and the evidence that he furnished in support of those claims. The reasons for decision record that:

a)    the Tribunal considered the appellant’s ability to participate effectively in the Tribunal hearing in light of a letter that the appellant had provided from a counsellor at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) dated 26 July 2011. The Tribunal concluded that the appellant was able to participate effectively in the Tribunal hearing;

b)    the Tribunal considered the appellant’s claims and additional material that the appellant relied on but found that the appellant was not a credible witness and made an adverse credit finding against him. The Tribunal did not accept the appellant’s claim that there was a real chance that he would be killed or attacked as a result of the claimed land dispute if he returned to Bangladesh now or in the reasonably foreseeable future. Nor did the Tribunal accept that if he returned, there were substantial grounds for believing that there was a real risk that he would suffer significant harm as a result of the claimed land dispute or because people will know that he has been in Australia and may believe that he has made a lot of money here.

c)    The Tribunal then considered the appellant’s claims based on his religion as a Hindu. The Tribunal did not accept that there was a real chance that the appellant would be prevented from practising his religion as a Hindu or that he will be attacked or discriminated against in such a way or to such an extent as to amount to persecution for reason of his religion as a Hindu or that there were substantial grounds for believing that that there is a real risk that he will suffer significant harm because of his religion as a Hindu, if he returned.

Federal circuit court

7    The appellant sought judicial review in the FCC of the Tribunal’s decision. The grounds of his amended application were that:

Ground 1:    the Tribunal had failed to assess his persecution on the basis of his religious identity as a Hindu in Bangladesh;

Ground 2:    the Tribunal had failed to take into account, or gave insufficient weight to, the injuries that he and his daughter had suffered following an attack from the Muslims; and

Ground 3:     the Tribunal had failed to give reasonable weight to the STARTTS report.

8    In a judgment delivered on 10 April 2013, the FCC addressed each of the three grounds of review. As to ground 1, the FCC found that the Tribunal had clearly assessed the appellant’s claim to fear persecution as a Hindu in Bangladesh and that it was open to the Tribunal to find on the evidence and material before it for the reasons that the Tribunal gave, that the appellant did not face a real chance of harm and was not at risk of significant harm on the basis of his religion.

9    On ground two, the FCC found that the Tribunal had considered the evidence before it concerning the claimed injuries sustained by the appellant and his daughter and that the Tribunal’s findings were open to it on the evidence and material before it.

10    The Court also held there was no substance in ground three as the Tribunal had taken into account the letter from STARTTS as well as the appellant’s claims about his state of mind in finding that the appellant was able to participate effectively in the Tribunal hearing and that this finding too was open to the Tribunal on the material and evidence before it.

11    The FCC concluded that each of the three grounds, in substance, sought impermissible merits review and as no jurisdictional error had been established on any of the bases contended for by the appellant, the application for judicial review must be dismissed.

appeal to this court

12    The notice of appeal filed in this Court on 29 April 2013 was in identical terms to the amended application for judicial review filed in the FCC. The appeal must fail because the FCC correctly held that no jurisdictional error had been established. It is impermissible for the appellant to challenge the factual findings of the Tribunal made within its jurisdiction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and at 291-292 per Kirby J.

13    As to ground 1, whilst acknowledging that there were problems involving violence against religious minority communities, the Tribunal relied on independent country information which indicated that the number of attacks against the Hindu community had dropped significantly. It also gave weight to the extent and involvement of the Hindu community in Bangladesh. As the FCC correctly noted, the selection and weight to be given to items of independent information was a matter exclusively for the Tribunal to determine: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per RD Nicholson J (Kiefel and Downes JJ agreeing); Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [46] per French, Sackville and Hely JJ. There was no error in the Court’s approach to ground 1.

14    As to ground 2, the FCC was correct to hold that:

The Tribunal was not required to accept the appellant’s claims at face value and that the issue of weight was a matter for the Tribunal as part of its fact finding function and, as indicated, its general conclusion that the appellant was not a witness of truth and the Tribunal’s rejection of his credibility were findings of fact by the Tribunal that were open to it on the material before it. The FCC also correctly reasoned that the appellant’s complaint that the Tribunal had not afforded him natural justice was not established and that in essence the complaint amounted to a challenge to the findings of fact that the Tribunal made: Reasons below at [37].

15    As to ground three, the FCC was also correct to conclude at [45] of its Reasons, that the challenge amounted to impermissible merits of review.

16    The appellant additionally submitted on appeal that the Tribunal should have made inquiries about the events in his village to find out the truth. The appellant made the same submission before the FCC and the Court correctly held that the Tribunal had not fallen into jurisdictional error because it had not made those enquiries for itself. The Court reasoned as follows:

I note that in the course of oral submissions the Applicant suggested that the Tribunal, or some other entity, could make inquiries through the Australian High Commission in Bangladesh about events in his village and find out the truth. However it is for an Applicant to put material before the Tribunal in support of his case. There is no general ability to make inquiries. There is nothing in the material before the Court to suggest that the Applicant asked the Tribunal to make specific inquiries or that this is a matter in which there is a critical fact the existence of which is easily ascertained, such that the Tribunal’s failure to make inquiries might be seen as giving rise to a jurisdictional error in the sense considered in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. The fact that the Applicant raises this possibility at this stage does not establish that the Tribunal fell into jurisdictional error: Reasons below at [43].

There was no error in the Court’s reasoning.

conclusion

17    The appeal is dismissed. The appellant is ordered to pay the first respondent’s costs of the appeal.

Associate:

Dated:    16 August 2013