FEDERAL COURT OF AUSTRALIA

SZSSJ v Minister for Immigration and Border Protection [2013] FCA 1223

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration and Border Protection”.

2.    The proceedings commenced by notice of appeal filed on 1 July 2013 be dismissed with costs.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1    This proceeding was commenced by notice of an appeal to this Court from a judgment of the Federal Circuit Court of Australia (“the FCCA”). The notice of appeal was dated 1 July 2013. On 30 July 2013, the first respondent filed a notice objecting to the competency of the proceedings. The notice was expressed as an objection to “the competency of the application for an order under the Judiciary Act 1903 in relation to a decision under the Migration Act 1958”. Despite that description, it is apparent from the grounds stated in the notice of objection that the real ground for the objection to the competency of the appeal to this Court was that it was not accompanied by an application for leave to appeal. An application for leave to appeal is necessary because the order from which the appeal is brought was made pursuant to an interlocutory judgment (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)). That technical issue may be put to one side for the moment. Despite the objection to the competency of the proceedings, I shall refer to the moving party as the appellant.

2    The appellant is a citizen of Bangladesh. He arrived in Australia over seven years ago. On 16 October 2012, he applied for a protection visa. The application for a protection visa was refused on 20 November 2012, and the appellant applied to the Refugee Review Tribunal (“the RRT”) for review of that decision. On 19 February 2013, the RRT affirmed the decision not to grant the appellant a protection visa.

3    The claim for a protection visa was based upon a number of grounds. Central elements of those claims appear from the following paragraphs in the decision of the RRT:

FINDINGS AND REASONS

…

51.    In the present case I accept that the Applicant has changed in his physical appearance since arriving in Australia over seven years ago, most notably in the arrangement of his hair which he wears in a distinctive African cornbraid style. I also accept his claim that he has adopted a lifestyle in Australia which, devoted to music, girlfriends and clubs on all or most nights of the week, differs somewhat from the life he led in Bangladesh. He claims, and I am prepared to accept, that he remains a devout Muslim and that he observes all the requirements of the Muslim faith, including those relating to regular worship. I also accept that, while fully observant, he has developed a view of his religion which can generally be described as liberal, at least in contrast to the views of Islamic fundamentalists, and which leads him to value human rights, including the rights of women, as he conceives those rights to be.

Religion

52.    At the hearing the Applicant claimed to fear that fundamentalist Imams and others would deny him entry to a mosque because his appearance and his liberal view of Islam will lead them to accuse him of being a non-believer. He added that he feared this would lead to violence because he would insist on his right to worship. It was likely that the security forces would then become involved and he would be at risk of being jailed or killed by the RAB in a ‘crossfire’ incident. He claimed he would also feel compelled to speak out against Islamic fundamentalism in these settings and would be subjected to violence as a consequence.

…

58.    The Applicant’s only evidence to suggest that he had done anything to express himself in public in the past was his claim at the hearing that he began to write a book on human rights when he was still living with his parents but abandoned it when his mother beat him. He does not claim ever to have resumed this project, including after arriving in Australia. I accept, as noted above, that his views about Islam may well have developed over a number of years in Australia. However, there is nothing to suggest that he has ever taken any steps, even in recent times when his views might reasonably be expected to have been fully formed, to air his thoughts in public, either in Australia or in Bangladesh. He confirmed at the hearing that he had not expressed himself on these matters, including on-line. He said he had considered placing material on a blog or in a video clip for Youtube but had not done so, for fear of the consequences. When he was asked why he could not simply have posted the material under an assumed name he claimed he wanted to post in his own name but was afraid to do so because he did not have an Australian passport (and, by inference, might be returned to Bangladesh). He claims that, in Bangladesh, he would express his more liberal views about religion while attending a mosque but he does not claim ever to have made known his views on this or any other topic during his regular worship at mosques in Australia.

59.    Taking this information together I am not satisfied that the Applicant would, in fact, express his more liberal views in any public setting if he were to return to Bangladesh, and I do not accept that he would suffer harm at the hands of Islamic fundamentalists or anyone else for such a reason. I consider this would be the case not because considerations of possible consequences would dissuade him from a course of action he might otherwise wish to adopt, or that he would be inhibited by a need for discretion, but simply because it is not his nature or his practice to express himself in public on these or other matters. I am also not satisfied it is plausible that his physical appearance in itself would represent any form of implied public statement about his religious views such that he would be exposed to a real chance of harm for that reason.

Harm from family members

60.    The Applicant claims to fear harm from members of his family, both because of their fundamentalist religious views and for other, more personal, reasons. At the hearing he said that as a child he was kept firmly under the family’s control and his mother, in particular, wanted him to adopt a highly religious life including by becoming an Imam. He asserted that if he returned to Bangladesh he would once more come under their sway, to the point where his mother would meet him on arrival at the airport, cut his hair and force him into an arranged marriage.

61.    Having considered these claims I am not satisfied they are plausible. As put to the Applicant, he is no longer a child but an adult of twenty-seven years. He has spent many years outside Bangladesh, studying, earning an income and making his own way in life. On his own evidence this lengthy period of his life has caused him to change his views about many things. I accept that family ties are traditionally strong in Bangladesh society, as he asserted, and I am also prepared to accept that he has a generally close relationship with his immediate family. However, I am not satisfied it is at all plausible that in his particular circumstances he would be forced against his wishes into changing his views or his appearance or entering into an arranged marriage. Nor am I satisfied as to the plausibility of his associated claim that his family would be able to coerce or threaten him into complying with their wishes through unidentified associates, whether or not including particular Imams known to his mother.

62.    The Applicant also claims to fear harm from three uncles who, variously, hate him because of his liberal religious views, because he is not of their blood (having entered the family as a step-nephew through his mother’s marriage) and because (in the case of one uncle) of a homicidal targeting of him and his immediate family.

…

67.    The Applicant suggested, although without any elaboration, that his uncles would also be motivated to harm him because of his appearance and his liberal attitudes to Islam. Given the marked vagueness and lack of circumstantial detail in the information he has provided about these figures, however, I am unable to be satisfied that they hold such an attitude toward him or, even if they did, that they would be so motivated by it as to wish to do him harm.

68.    Taking this information together I am not satisfied that the Applicant does, in fact, face a real chance of harm from the three uncles he has mentioned, or from others who might be associated with them, for the reasons he has suggested.

Particular social group

69.    The Applicant claims to fear harm in Bangladesh on the further Convention ground of his membership of one or more particular social groups. These are said to be composed of ‘people who reject Islamic fundamentalism,’ ‘people who do not comply with fundamentalist religious norms’ or ‘people opposed to Islamic fundamentalism/Islamic fundamentalist groups.’ He has produced no information concerning such entities, and they appear to have a large degree of overlap. I am however prepared to accept that they can be said to exist in Bangladesh, in the sense that they are identifiable by characteristics or attributes common to all their members which are other than a shared fear of persecution and which distinguish the groups from society at large. In doing so I take him to be referring to groups whose members are not in any way activists but who hold these views, as I have found he does, without proclaiming them in public. On this basis I accept that the Applicant could be said to be a member of such particular social groups.

70.    Having done so, however, I am not satisfied that the information before the Tribunal indicates that people in Bangladesh do in fact face a real chance of harm because of their membership of the particular social groups posited by the Applicant. I am not satisfied there is anything in the information to indicate that simply holding liberal views about Islam or opposing or not accepting fundamentalist views does, in itself, give rise to a real chance of harm absent any element of activism in furtherance of these views. It follows that I am not satisfied that the Applicant would face a real chance of harm for this reason.

Political opinion

71.    The Applicant claims to fear harm in Bangladesh because of a real or imputed political opinion. In his protection visa application he appears to argue that he faces a general risk of harm from the frequent violence between political parties in Bangladesh, all of which are corrupt and involved in human rights abuse. In the post-hearing submission of 12 February 2013 he suggests he would be at increased risk of harm during election times as this is when violence between the parties increases. Further, political parties at these times are active in establishing the political views of people in their area and they may target him because they will not believe or accept that he does not support any party.

72.    I accept that, as he claims, the Applicant does not support any of the political parties in Bangladesh, presumably because of his view that they are corrupt and abusive. I consider that, consistent with this position, he would not involve himself in the activities of any particular party if he were to return to Bangladesh, including by campaigning during elections.

73.    I am prepared to accept that the Applicant’s liberal views about his Islamic faith, his concern for human rights including the rights of women and his rejection of corruption and discrimination could be said to amount to, or be elements of, a political opinion even if that is a non-partisan one. However, I do not accept, for reasons already explained, that on return to Bangladesh he would express his liberal views about Islam in any public way. He does not directly claim that he would express in public his views about wider issues, such as corruption or human rights, and I am not satisfied the information before the Tribunal indicates that he would do so. I consider this would be, once more, for the reason that it is simply not his practice to speak out in public on such issues. For these reasons I am not satisfied he would be identified as holding any particular political opinion. It follows that I am not satisfied he would suffer harm for such a reason. I have considered, but find implausible, the associated claim that he would be targeted for harm simply because various political parties could not believe or accept that he was, in fact, not supportive of any party.

74.    For the sake of completeness I note that in his protection visa application the Applicant claims to fear harm at the hands of the Bangladesh authorities, in particular the police and the army. He expresses the view that the authorities are corrupt and abusive but he has not explained exactly why they wish to harm him beyond suggesting that they would take the side of fundamentalists when he tried to insist on his right to worship in a mosque. As noted above I do not accept that he would be unable to worship in a mosque in Bangladesh and it follows that I am not satisfied circumstances would arise in which he would suffer such harm. He also suggests, more generally, that many in the military and the army have fundamentalist views and that he would be harmed by them for this reason. Again, however, I am not satisfied that the information before the Tribunal supports a conclusion that people in Bangladesh are targeted by elements of the police or the military simply because they do not happen to subscribe to a fundamentalist interpretation of Islam. As for his assertion that the police are supporting [an uncle], the uncle he claims intends to kill him, I note that the media clippings he submitted to the Tribunal indicate clearly that [the uncle] was arrested, tried, convicted and sentenced to death and that the police are searching for him. I am not satisfied that this indicates the police are complicit in efforts by [the uncle] to kill the Applicant. Nor am I satisfied there is any other reason to believe that the Applicant would be harmed by the authorities if he were to return to Bangladesh.

75.    In the light of these findings I am not satisfied that the Applicant would face a real chance of serious harm in Bangladesh because of his religion, his political opinion or his membership of the particular social groups which have been suggested. Nor am I satisfied there is a real chance that he would be harmed by members of his own family.

…

Summary

78.    In the light of all the information before the Tribunal I am not satisfied that the Applicant does, in fact, face a real chance of serious harm amounting to persecution in Bangladesh because of his religion, his real or imputed political opinion or his membership of a particular social group. He does not claim to fear harm for any reasons other than these and no other reasons are apparent on the face of the information before the Tribunal.

79.    I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Bangladesh, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

4    Importantly, for the circumstances of the present proceedings, the RRT then went on to record the following matters:

80.    I have also considered whether the Applicant might meet the alternative criterion for complementary protection. I accept that if he were to return to Bangladesh he might be an object of some interest in his local community because of his appearance, and in particular because of his hair style. It is conceivable that he might face some degree of teasing or even ridicule on this score, and that this might make him to some degree uncomfortable. I also accept that he might find Bangladesh society to be, generally, more conservative than the social settings to which he been accustomed in Sydney in recent years, and that he might well find this restrictive and uncongenial. However, I am not satisfied on the information before the Tribunal that these factors could reasonably be seen as amounting to significant harm in his particular circumstances. Nor am I satisfied that he is at risk of significant harm from the other sources he has identified – fundamentalist Muslims, including Imams; the authorities, his immediate and extended family and their associates; or members of political parties.

5    On 28 March 2013, the appellant commenced proceedings in the FCCA seeking judicial review of the decision of the RRT.

6    The ground for the application to the FCCA was as follows:

There are some jurisdictional errors in RRT decision. The member did not act according to the law in assessing complementary protection criteria.

7    At the hearing before the FCCA, the appellant advanced no positive case in support of his application for judicial review. In his oral submissions at the present appeal, he explained that he had not slept the night before the hearing in the FCCA and had believed, in any event, that it was only listed for directions and not for a final hearing. He sought an adjournment of the final hearing before the FCCA but it was not granted. I shall return a little later to this issue.

8    The FCCA recorded the apparent restriction of the challenge to the RRT decision to the issue of complementary protection criteria, but went on to consider the approach taken generally by the RRT, saying as follows:

5.    The applicant has not identified any other error on the face of the RRT’s decision record, and none is apparent to this Court. The applicant’s claims were Convention based and ultimately not accepted by the RRT, who affirmed the decision under review.

6.    A fair reading of the RRT’s decision record makes clear that the RRT had regard to the applicant’s written claims, his departmental interview, his claims at hearing and a post hearing submission by the applicant’s migration agent. The RRT explored the applicant’s claims at the hearing and put to him concerns it had about his evidence and noted the applicant’s responses. The RRT also had regard to country information provided by the applicant’s migration agent and other country information that it sourced in considering the applicant’s claims. The RRT then considered the applicant’s claims to fear harm because of his religion, his political opinion and because of his membership of a particular social group. In particular the RRT had regard to the applicant’s explanation for his seven year delay in seeking protection after he arrived in Australia. The RRT found that the applicant’s delay was not consistent with a claim of a genuine fear of serious harm if he returned to Bangladesh. Nevertheless, the RRT gave the applicant the benefit of the doubt by accepting that he may have some fear upon return but was not satisfied that this could be so strong as to constitute psychological harm amounting to a fear of persecution.

7.    Ultimately, the RRT was not satisfied that the applicant faced a real chance of serious harm amounting to persecution in Bangladesh because of his religion, real or imputed political opinion or membership of a particular social group. Therefore, the RRT concluded that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

8.    A fair reading of the RRT’s decision suggests that its findings and conclusions were open to it on the evidence before it and for the reasons given.

9.    In the circumstances, the applicant has not raised an arguable case for the relief claimed.

9    The stated grounds for the appeal to this Court are:

1.    Migration Act 1958, s32(1)a, was not observed properly and the RRT member was not acting in good faith in decision making process.

2.    The decision does not relate to the subject matter of the legislation and the decision exceeds the limits set out in Commonwealth constitution.

3.    The RRT deprived me of natural justice.

4.    The RRT member did not act according to the law assessing the complementary protection criteria.

[sic]

10    It will be noted that no complaint is made about a lack of opportunity to present a case to the FCCA. The appellant did not file written submissions in support of his appeal, although he asked if he might do so at the end of his oral submissions. I refused the request as the appellant had failed to comply with an earlier direction that he file any written submissions upon which he wished to rely in support of his appeal, and as I was satisfied from the appellant’s oral submissions to which I refer below that he had no issue to raise which might suggest jurisdictional error on the part of the RRT.

11    When invited to make oral submissions, the appellant complained first about the failure of the FCCA to adjourn his application to that Court. He was then invited to indicate what matters he would have wished the FCCA to take into account, and wished to advance in the present appeal, should leave to appeal be granted.

12    The appellant’s oral submissions were to the effect that the RRT did not take his case seriously and that the decision was not a fair one because the RRT accepted only some matters (which were not sufficient for success) and rejected matters which were critical to the visa application. In effect, the submissions were about the merits of the RRT decision. They did not identify or suggest any error of procedure or analysis that might amount to jurisdictional error.

13    I agree with the FCCA that there is no apparent jurisdictional error in the decision of the RRT. The passages I set out earlier demonstrate that the RRT gave detailed attention to the appellant’s claims but, on examination, they did not establish that he was a person to whom Australia had protection obligations or who met the alternative criteria for complementary protection.

14    It is unnecessary to dwell on whether the appeal should be dismissed on any technical basis because leave to appeal has not been formally sought. The preferable course, in the present case, is to deal with the matters raised by the appellant as a matter of substance. That is an evaluation which would have been to some extent required in any event. Had an application for leave to appeal been made it would require consideration in accordance with the principles stated in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, principles which have been affirmed by this Court on numerous occasions.

15    I am satisfied that there is no substance in any suggestion that the RRT committed a jurisdictional error in its assessment of the appellant’s claims. The grounds of appeal to this Court were formulaic in nature. No particular matter was raised by them, or in any submission by the appellant, which would support an allegation of jurisdictional error by the RRT. There is no reason, therefore, to doubt the correctness of the judgment of the FCCA. If leave to appeal had been sought it would be refused.

16    In the circumstances, the appropriate order in the present case is that the proceedings commenced by notice of appeal filed on 1 July 2013 be dismissed. Costs should follow the event.

Associate:

Dated:    21 November 2013