FEDERAL COURT OF AUSTRALIA

SZRAX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 49

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming a decision of a delegate of the first respondent (Minister’s delegate) not to grant the applicant a Protection (Class XA) visa: SZRAX v Minister for Immigration & Anor [2019] FCCA 1600.

2    The notice of appeal contains the following two grounds of appeal:

1.    Federal Circuit Court JUDGE STREET Erred in Law when he failed to find that the RRT Member had made a Jurisdictional error by failing to comply with the Refugee Convention 1952 through a) Identifying a wrong issue b) Ignoring relevant material & relies on irrelevant material.

2.    Federal Circuit Court JUDGE STREET Failed in Law when he couldn’t find that RRT member dicision [sic] was unfair which was based on misconstruction & misunderstanding on Factual Truth.

3    The appellant did not file written submissions in support of his appeal. He represented himself at the appeal hearing. Although a Bengali interpreter was present, the appellant chose to communicate with the Court in English.

Background facts

4    The appellant is a Bangladeshi citizen who arrived in Australia on 5 April 2010 as the holder of a Business (Short Stay) (subclass 456) visa. The Tribunal found that the appellant is a Barua Buddhist, a Bengali-speaking Buddhist as distinct from “tribal Buddhists” who live predominantly in the Chittagong Hill Tracts of Bangladesh. However, the Tribunal also found that the “home area” of the appellant’s family was in the Rangamati Hill Tract, which forms part of the Chittagong Hill Tracts.

5    On 30 April 2010, the appellant applied for a protection visa. After that application was refused, from about November 2010 to October 2013, the appellant exercised his various rights of review and appeal concerning the application but was ultimately unsuccessful in securing a protection visa.

6    On 16 November 2013, following the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (SZGIZ), the appellant applied for a second protection visa on the grounds of complementary protection.

7    On 28 May 2014, the Minister’s delegate refused to grant the appellant a protection visa. The appellant sought review of the delegate’s decision by the Tribunal. The appellant appeared at a hearing before the Tribunal on 23 March 2015.

8    The Tribunal made its decision on 29 June 2015, affirming the decision not to grant the appellant a protection visa.

Appellant’s submissions to this court

9    At the hearing of the appeal, the appellant conceded that there was no legal error in the decision of the FCCA judge.

10    However, the appellant stated that he wished to “express directly what I really have to say”.

11    The appellant then took issue with the Tribunal’s finding that, if returned to Bangladesh, he would return to Fatikchari, the place of his birth and where his mother and sister currently lived. This finding was made by the Tribunal in the course of addressing the appellant’s claim to fear returning to Bangladesh because he has no property of place to go there. In that context, the Tribunal was not satisfied as to the appellant’s statement that he would return to the Chittagong Hill Tracts.

12    Fatikchari is in the district of Chittagong, to the west of the Chittagong Hill Tracts. The appellant submitted that his habitual residence in Bangladesh was not Fatikchari but rather in the Chittagong Hill Tracts in Rangamati and that the Tribunal had ignored that address when the “real unrest situation” has been happening in the Chittagong Hill Tracts.

13    The appellant said that the Chittagong Hill Tracts are a very high risk area in Bangladesh but said that Fatikchari is also one of the scarier parts of Bangladesh so that, even if he were to return to Fatikchari, “it would still be the same scenario”.

14    The appellant also said that his mother and sister “go back and forth” between Rangamati and Fatikchari.

15    The appellant also said that the finding that he would return to Fatikchari was “not really very realistic”. When asked to elaborate on why it was unrealistic, the appellant stated:

Because my mother is like living there. I have lived there almost like 20 years ago. So I was afraid because when I was a kid I was living there and I saw in front of my eyes how, like, our home was looted and my father was, like, beaten and I was also beaten at the same time. I did mention this in my early application – all this. So this – that was our main home, original home in Fatikchhari. So we had to first live from the Fatikchari to Rangamati Hill Tracts. I never even think to go back in that area. So, unfortunately, since my sister was married to that area my mum have no one so she had no choice, not – but live with my sister.

But after that my habitual - since I was a Buddhist monk I was thrown in place to places, but my habitual residence since I left the Bangladesh was Rangamati, Chittagong Hill Tracts, and that should be my actual habitual residence area.

16    The appellant also said that he would definitely not return to Fatikchari because he has no connection with the area and because of persecution that he had experienced as a child in Fatikchari. The appellant also submitted:

And other thing if I go back there I will be extra burden for my sister’s family because my sister and her husband they’re really, really poor. They already taking care of the mum. If I go there all of a sudden after all these years – so I was afraid – of course, apart from all the reasons of my safety, this is just another simple reason that I just didn’t want to be like burden to go into that family and, you know, put pressure on their daily life.

17    The appellant’s attention was drawn to the Tribunal’s finding, in connection with claims made by the appellant relating to Barua Buddhists and religion. In short, the Tribunal concluded that the chance that the applicant will be harmed because of his Buddhist religion or his Barua ethnicity is remote.

18    In reaching that conclusion, the Tribunal referred to country information concerning Buddhists in Bangladesh and stated:

…the applicant does not claim to belong to the indigenous groups of the Chittagong Hill Tract. When this country information was discussed with the applicant at the hearing he stated that sometimes it can be official but sometimes only they know about the real instances and there are lots of incidents of persecution that happen. While the Tribunal accepts that there are incidents that occur, it considers the DFAT assessment to be a reliable source of information, gathered from a range of sources. Furthermore, the Tribunal considers that the DFAT assessment is consistent with the independent country information referred to above.

19    The appellant submitted that the Tribunal’s findings on this issue did not make sense because it was not necessary to be a member of an indigenous group to face harm in the Chittagong Hill Tracts.

20    The appellant also sought to rely on an Australian government publication on Bangladesh dated 22 November 2019, which recommends that Australians reconsider their need to travel to the Chittagong Hill Tracts region due to the threat of political violence and kidnapping.

Consideration

21    The appellant did not press the grounds raised in his notice of appeal, and conceded that the decision of the FCCA judge contained no legal error. Accordingly, it is unnecessary to address the notice of appeal except to note that it appears to re-agitate the grounds of review addressed by the FCCA judge, which were:

1.    That the RRT Member […] a jurisdictional error by failing to comply with the Refugee Convention 1951.

2.    That the RRT Member denied me natural justice by imposing false fraudulent blame on me, it decided in part that I was not a Refugee, which I believe was based on misunderstanding and misconstruction on my factual truth.

22    The issues raised orally by the appellant were not raised by him in the FCCA.

23    As to the Tribunal’s finding that the appellant would return to Fatikchari, that was a finding of fact made in the context of findings that:

(1)    The appellant claimed that he had no property or place to go in Bangladesh.

(2)    The appellant was born in Fatikchari and his mother and sister lived there.

(3)    The appellant had not lived in Bangladesh since 2004.

(4)    The appellant’s evidence that he had no land or property in Rangamati and that he had only attended school there from 1993 to 1996.

24    In the context of those latter findings, there is no reason to doubt the legality of the Tribunal’s finding that the appellant would return to Fatikchari. The Tribunal was not required to accept the appellant’s evidence that he would return to the Chittagong Hill Tracts.

25    Without being satisfied that the appellant would return to the Chittagong Hill Tracts, the Tribunal was not required to address the risks to the appellant of travelling to that area.

26    Accordingly, none of the matters raised by the appellant indicate any jurisdictional error on the part of the Tribunal and there is no basis for concluding that the appellant should be given an opportunity to raise those matters formally on the appeal.

Conclusion

27    The appeal must fail. Costs should follow the event.

Associate:

Dated:    6 February 2020