FEDERAL COURT OF AUSTRALIA

SZSHF v Minister for Immigration and Border Protection [2014] FCA 237

THE COURT ORDERS THAT:

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

2.    The appeal is dismissed.

3.    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.

REASONS FOR JUDGMENT

background

1    The appellant is a Bangladeshi citizen. He arrived in Australia on 7 November 2010 as the holder of a valid Sponsored Family Visitor visa (Subclass 679). On 6 December 2010, he applied for a Protection (Class XA) visa.

2    The appellant claimed to be a supporter of the Jatiyatabadi Jubodal, a political party associated with the Bangladesh Nationalist Party (the BNP). The appellant claimed to have become a member of the Jatiyatabadi Jubodal youth branch in 2006 and to be a supporter and worker for the party, involved in activities such as putting up posters, distributing leaflets and inviting people to branch meetings. The appellant claimed he had been promised the position of President of the Ward of the BNP in his area of Dhaka, and that it was only his departure for Australia which prevented him from taking up this position. He also stated that his father, uncle and cousins were also involved in politics supporting the BNP.

3    As a result of their support of the BNP, the appellant claimed that he and his family had all, at various times, been beaten, harassed and threatened by the opposing Awami League (the AL). The appellant claimed that in June 2008, his father had been stabbed by the AL after he refused to accede to their demands for money. The appellant also claimed that in November 2008, his family was victimised by a local Union Parishad official and his father was seriously beaten. Following this incident, the appellant claimed, a false case was lodged against his father and other relatives in the Court of Additional Magistrate in the Munchigonj district. The appellant claimed that these incidents were reported to the police, who merely diarised them.

4    The appellant also claimed to fear harm from the Kala group, an AL activist group. The appellant claimed that in 2008 a customer, who was under the influence of the Kala group, refused to pay a large debt he owed to the appellant. The appellant claimed that when he pressured this customer to pay the debt, the Kala group threatened to kill him. The appellant said he tried to report the incident to the police but they would not take his name. However, the appellant said that police eventually made a general diary entry of his complaint. A similar incident occurred in 2009. The police also refused to accept the appellant’s report of this incident but did eventually diarise the incident.

5    The appellant further claimed that in September 2009, his business premises were broken into by members of the Kala group and a large amount of money was stolen. The appellant claimed to have complained to the police, but said the police were hostile towards him and initially refused to accept his report of the incident. However, “by some means” the appellant said he was able to persuade the police to make a diary entry of the incident.

6    On 16 November 2011, a delegate of the Minister refused the appellant’s protection visa application. The delegate largely accepted the appellant’s claim, finding that the appellant “had been imputed with the political opinion as claimed” and that the appellant had suffered harm in incidents in Bangladesh because of this opinion and other non-Convention reasons. Further, the delegate found that the appellant did “not have access to effective state protection in Bangladesh”.

7    However, the delegate found that internal relocation within Bangladesh was a “viable and reasonable option given the appellant’s particular circumstances”. The delegate, therefore, found that the appellant did not have a genuine fear of harm or a well-founded fear of persecution, as defined under the Convention.

the refugee review tribunal’s decision

8    On 30 November 2011, the appellant applied to the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision.

9    The Tribunal was not satisfied of the credibility of the appellant’s account of his experiences in Bangladesh. The Tribunal was “prepared to give the [appellant] the benefit of the doubt” by finding that the appellant “joined, or at least supported Jatiyatabadi Jubodal and performed some low level administrative tasks, under direction, for that organisation”. However, the Tribunal did not accept that involvement at such a level would cause others in the Jatiyatabadi Jubodal or the AL to see the appellant as a party activist, nor would such involvement give the appellant a political profile as an activist or leader of Jatiyatabadi Jubodal or the BNP, in his area or in Bangladesh more generally, such that he would be harmed for that reason.

10    The appellant provided letters, purported to be written by senior figures in the BNP and Jatiyatabadi Jubodal, which supported his claims that he was a political activist in Bangladesh. The Tribunal took this supporting documentation into account when making its determination. However, the Tribunal found a number of peculiarities and inconsistencies in the documentation. These concerns were raised with the appellant at his hearing before the Tribunal and, having considered the appellant’s explanation, the Tribunal was not satisfied that any weight could be placed on these documents as evidence of the appellant’s claimed political activism.

11    The Tribunal accepted that the independent country information indicates incidents of political violence continued to occur in Bangladesh. However, the independent country information is that these incidents of violence were “overwhelmingly” directed at political leaders or activists.

12    Importantly, the Tribunal found that given that the appellant only had a low level of involvement with the Jatiyatabadi Jubodal, it was not satisfied that the appellant could have plausibly been the target of the harm he claimed.

13    The Tribunal made further adverse comments about the credibility of the appellant’s claims to have suffered from criminal groups allied with the AL. The Tribunal found the appellant’s claims not to be credible and was not satisfied that any such groups existed in Bangladesh. The Tribunal was not satisfied that the appellant and his family had suffered the various incidents of harm which the appellant claimed, whether by reason of any political opinion held by the appellant or his family members, or for any other reason.

14    For these reasons, the Tribunal did not accept that the appellant had a well-founded fear of persecution for a Convention reason.

15    The Tribunal went on to consider whether the appellant might meet the alternative criterion for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth). The Tribunal accepted the appellant’s claims that he encountered difficulties in his business when debtors refused to repay monies owed. However, the Tribunal said that it was not satisfied that this was due to anything other than normal commercial circumstances nor that the conduct complained of could reasonably be said to constitute significant harm in terms of s 36(2A) of the Migration Act.

16    The Tribunal also accepted that the appellant’s father was the victim of criminal violence but found that the information before the Tribunal did not reveal any grounds to believe that such incident was likely to reoccur. The Tribunal also noted that it accepted the respondent had suffered a serious work injury, but found that this did not create a real risk that the appellant would suffer significant harm if he returned to Bangladesh.

17    The Tribunal went on to find that the information before the Tribunal did not provide “any basis” for finding that there were substantial grounds to believe that there was a real risk that the appellant would suffer significant harm in terms of s 36(2)(aa) of the Migration Act, if he returned to Bangladesh.

the federal circuit court of australia

18    The appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. The appellant relied on one ground of review, namely, that the Tribunal had failed to exercise its jurisdiction in that “the Tribunal did not consider an integer of the [appellant’s] claims for complementary protection”.

19    The appellant relied on written submissions before the primary judge. The primary judge interpreted the appellant to be contending that the Tribunal had failed to consider whether or not the appellant’s claims of having suffered serious harm by reason of his involvement in Jatiyatabadi Jubodal gave rise to a real risk of him suffering “significant harm” for the purpose of s 36(2)(aa) of the Migration Act. Before the primary judge, the appellant submitted that the Tribunal had confined its consideration of his claims to have suffered harm, to his claim that he would suffer “serious harm”, whereas s 36(2)(aa) and s 36(2A) of the Migration Act required consideration of the risk of suffering “significant harm”. The primary judge recorded that the appellant had complained that the Tribunal had treated the two concepts as the same, and not considered whether his claims gave rise to “significant harm”.

20    The primary judge observed that the appellant before the Tribunal had relied upon the same incidents of harm in support of all elements of his application.

21    The primary judge found that the Tribunal’s findings in rejecting the appellant’s claim of having a fear of suffering “serious harm” if he returned to Bangladesh, subsumed any claims he had of a risk of “significant harm” by reason of his political affiliations. The primary judge observed at [51]:

[T]he Tribunal’s conclusion that the [appellant] would not face serious harm in Bangladesh as claimed was sufficient to cover the Tribunal’s obligation to consider whether the applicant was at risk of significant harm if he was to return to Bangladesh. Having rejected that the applicant could plausibly have been a target for the forms of serious harms that he claimed, there was nothing before the Tribunal that obliged it to consider further the particular of “significant harm” identified in s 36(2A) of the Act. (Original emphasis.)

22    Accordingly, the primary judge found that the appellant’s amended application for judicial review was not to be made out.

the appeal

23    By notice of appeal filed on 22 May 2013, the appellant advanced the following grounds:

1.    The decision of the second respondent was affected by jurisdictional error and the Federal Circuit Court failed to recognise this issue that:

(i)    The second respondent failed to exercise its jurisdiction in that the Tribunal did not consider an integer of my claims for complementary protection.

(ii)    I submitted certain reports and press releases established that the security and political situation in Bangladesh remained volatile and dangerous, that human rights violations continued despite government promises to curb it, that opposition political party members including people who work in the grass root level faced harassment from the Bangladeshi authorities and that there was impunity for human rights abusers in Bangladesh.

(iii)    I submitted that there was significant evidence that state authorities engaged in or condoned human rights abuses targeting opposition members, in particular against BNP members.

(iv)    The Tribunal limited its consideration of the applicant’s claims in relation to my involvement with the Jatiotabadi Jubodal to serious harm under section 91R of the Migration Act and did not consider whether the same claims might amount to significant harm in terms of section 36(2A) of the Migration Act. Instead the Tribunal seems to have treated its findings on serious harm under section 91R as applying to significant harm under section 36(2A) as if the two concepts were the same which they are not.

(v)    Therefore the Tribunal limited its consideration of and findings in relation to complementary protection to the matter that I submitted I was in difficulties in business and my father’s experiences as a victim of hijacking and my work injury.

24    Before this Court, the appellant raised two arguments.

25    First, the appellant, in effect, contended that the primary judge erred in failing to find that the Tribunal had fallen into jurisdictional error by not having regard as to whether his claims gave rise to complementary protection on the basis that there were substantial grounds for believing that there was a real risk that he would suffer “significant harm” if he was returned to Bangladesh. Secondly, the appellant contended that the Tribunal erred in failing to find that in Bangladesh even those who were at the lower levels of the Jatiyatabadi Jubodal suffered violence and harassment at the hands of political rivals.

26    As to the first of the appellant’s contentions, in my view, the primary judge did not err. It is clear that the same incidents of violence and harassment were relied on by the appellant as the basis for his claim that he had feared that he would suffer “serious harm” if he was returned to Bangladesh, as well as for his complementary protection claim that there were substantial grounds for believing there was a real risk he would suffer “significant harm” if he was returned. The Tribunal, having on credibility grounds, rejected his claim, that he had suffered the harassment and violence in Bangladesh on account of his political associations, which he claimed, the Tribunal, thereby dispensed with both aspects of the claim made by the appellant. Therefore, as the primary judge found at [51] of the reasons for decision, set out at [21] above, the Tribunal did not fall into jurisdictional error in failing to deal specifically with those matters under the rubric of complementary protection.

27    As to the appellant’s contention that the Tribunal erred in failing to find that violence and harassment in Bangladesh was directed towards ordinary members of the Jatiyatabadi Jubodal, as well as those occupying prominent positions, this is a complaint about the fact finding process of the Tribunal. Such a contention does not allege jurisdictional error on the part of the Tribunal.

28    The primary judge did not err in concluding that the decision of the Tribunal was not affected by jurisdictional error.

29    The appeal is dismissed with costs.

Associate:

Dated:    18 March 2014