SZGTR v Minister for Immigration and Citizenship

THE TRIBUNAL'S DECISION 11 The Tribunal accepted the appellant's evidence as to his Buddhist training in Bangladesh and in institutions in regional countries, and his account of travel to and from Bangladesh. It did not accept that his movements in and out of Bangladesh were due to actual or threatened persecution. It did not accept his claims of the physical attack on his grandfather and sister, and the partial burning down of the family home in May 1994. It did not accept that he had been subject to extortion demands on his return from Burma in 2002. Overall, it thought that his claims of past harm in Bangladesh were not reliable, and that he did not leave Bangladesh at any time to escape harm but rather because of his commitment to pursue Buddhist studies and practice. 12 The Tribunal also included, on the basis of independent country information, that Buddhists are generally treated in an acceptable manner in Bangladesh, and are not subject to systematic persecution in Bangladesh. It therefore concluded that the mere fact that the appellant was a Buddhist or a Buddhist monk in Bangladesh did not give rise to a real chance of harm amounting to persecution. 13 It also concluded that, if the appellant genuinely feared returning to his own area for other reasons, he could safely and reasonably live in another part of Bangladesh, including in one of the cities or towns with Buddhist minorities.

THE FEDERAL MAGISTRATE'S DECISION 14 Ultimately, the only ground upon which it was alleged before the Federal Magistrate that the Tribunal had committed jurisdictional error in its conclusions was that it had failed to accord him procedural fairness by not putting to him for comment certain matters on which the Tribunal made findings of fact adverse to him. 15 That was a complaint of failure to accord common law procedural fairness, rather than a complaint based upon s 424A of the Act. Section 424A requires the Tribunal, in certain circumstances, to give to a visa applicant particulars of information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and to invite the visa applicant to comment on it. No complaint of contravention of s 424A(1) was made before the Federal Magistrate. 16 The allegations of a lack of procedural fairness were that the Tribunal had not specifically invited the appellant to comment upon its observation, in its reasons, that there would have been other opportunities over the years to harm the appellant or his father directly if the claimed victimisation were true; that it was unlikely that the local fundamentalists would have endeavoured to extort funds from him because they would have known that the appellant did not have the financial means to pay extortion demands; and that it was unlikely that the fundamentalists would have thought that the appellant would be able to arrest or reverse the decline in the family fortune. It was said that, as a matter of procedural fairness, the appellant should have been given the opportunity to comment on those three matters. 17 Section 422B of the Act excludes the operation of common law principles of procedural fairness in proceedings before the Tribunal: Minister for Immigration and Multicultural Affairs v Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. Those authorities establish that Div 4 of Pt 7 of the Act provides a comprehensive procedural code containing detailed provisions for procedural fairness with which the Tribunal must comply, and which excludes any other common law natural justice hearing rule. Consequently, the ground of alleged jurisdictional error argued before the Federal Magistrate could not be sustained.

THE GROUNDS OF APPEAL 18 On this appeal, the decision of the Federal Magistrate is not directly challenged. 19 The appellant seeks leave to rely on two new grounds of appeal, namely that: (1) the Federal Magistrate erred in not finding that the Tribunal failed to comply with s 424A of the Act with respect to information contained in a statement attached to the appellant's protection visa application suggesting that the appellant's grandfather had died after an attack on the family home in 1994, which it regarded as inconsistent with his subsequent explanation at the hearing, so that the Tribunal was not satisfied that his grandfather's death had any link with "terrorist-related" activity; and (2) the Federal Magistrate erred by not finding that the Tribunal constructively failed to exercise its jurisdiction by failing to consider his claim that he faced persecution as a member of a particular social group consisting of Buddhist religious activists who are involved in the social and welfare activities of their community, rather than identifying the relevant particular social group as being one consisting of Buddhist monks generally. 20 Counsel for the first respondent opposed the appellant being granted leave to raise those two grounds upon appeal as there are no exceptional circumstances warranting the grant of leave to do so, especially as the appellant was represented by counsel before the Federal Magistrate and has not sought to explain why those grounds were not raised before the Federal Magistrate: see Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18]; SZDJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 533 at [32]-[35]. He contended that the appellant should be bound by the conduct of the case before the Federal Magistrate.

21 As the merits of the proposed grounds of appeal are relevant to decide whether leave to appeal should be granted (see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]), it is appropriate first to address the proposed grounds of appeal to assess their merits. Realistically, as counsel for the first respondent acknowledged, if those grounds of appeal are likely to result in success on the appeal and the quashing of the decision of the Tribunal, given the significant implications to the appellant of the present decision of the Tribunal which would have him return to Bangladesh, there would be strong reason to allow the proposed grounds of appeal to be pursued: cf SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 at [66]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51.

CONSIDERATION 22 As to the first proposed ground of appeal, the Tribunal in its reasons referred to the appellant's claims before the Tribunal of being subject to extortion demands on his return from Burma in 2002, and that his grandfather was killed by "terrorists" who had come searching for him. It was not satisfied that any part of that account was correct. It noted that the photographs of his grandfather's funeral provide no information as to the cause of his death, or as to the perpetrators, and that the mourners and bystanders pictured did not give the impression of there being any security concerns such as might be expected if a person's death was attributable to "terrorists". The Tribunal continued: The applicant also had referred in the (now-discredited) statement attached to his protection visa application to his grandfather having died in or around 1994; in explaining that [sic] the 1994 incident that [sic] he had meant to say that it had 'contributed' to the death, the applicant brought into question the whole cause, such that the Tribunal is not satisfied that the death had any link whatsoever with 'terrorist' related activity. 23 That was part of the second of three reasons why his account of having been subject to extortion demands on his return from Burma in 2002 and that his grandfather was killed by terrorists, were not accepted. It was part only because it followed the Tribunal's observations about the photographs of his grandfather's funeral. The first was that, if the appellant or his family had been targeted by terrorists, there had been ample opportunity over the years to late 2004 to harm him and his family but that had not apparently occurred. The third was that it must have been known to the alleged extortioners that the appellant and his family did not have the resources to meet any such demands. Those three reasons led to the Tribunal to conclude that the appellant's claims of past harm in Bangladesh are not reliable. 24 The reference to the statement attached to the protection visa being discredited flowed from the appellant's evidence at the hearing before the Tribunal that his protection visa application and attached statutory declaration had been prepared by his migration agent, and had only been subject to cursory checking by him. The Tribunal accepted that the protection visa application and supporting material contained assertions which the appellant had not checked and which were not his. It said that it was, therefore, unable to rely on the text of the protection visa application and supporting material, and acceded to the appellant's request that it draw no adverse conclusions from minor discrepancies between that material and his oral evidence. 25 The particular document identified in submissions was the statutory declaration attached to the protection visa application then dated 11 November 2004. In that document the appellant had said that in early 1994 his family members were physically assaulted and his grandfather had died of that assault without treatment. When recording the appellant's oral evidence at the hearing before the Tribunal on 20 April 2005, the Tribunal noted the receipt of a submission on behalf of the appellant of 13 April 2005 which included two photographs of a funeral, and that at the hearing the appellant had said that the two photographs were of his grandfather's funeral taken in 2003 after he had been "attacked and killed by terrorists". The Tribunal also recorded the appellant as having described the May 1994 incident when local Muslims had attacked and targeted his family and had beaten up his grandfather, who sustained injuries from which he never fully recovered, and partly set the family home on fire. 26 The appellant contended on the basis of that material that the Tribunal had failed to give him written notice as required by s 424A(1) of the information in the statutory declaration about what he had then said about the circumstances of his grandfather's death. 27 The first respondent submitted that in the material referred to, in particular the quoted passage, the Tribunal has not used the inconsistency which emerged from the statutory declaration attached to the protection visa application about his grandfather having died in or around 1994, compared to his evidence at the hearing of his grandfather having died in 2003, as a reason or part of the reason, for affirming the decision under review. It was submitted that the Tribunal did not rely on the claim of the grandfather having been killed in 1994, but upon the appellant's explanation at the hearing as to why that claim had been made earlier. Consequently, the first respondent contended that there had been no use of information not provided by the appellant to the Tribunal within the meaning of s 424A(3)(b) so as to enliven the obligation under s 424A(1). The first respondent's counsel referred specifically to the Tribunal's observation that it did not intend to rely on the text of the protection visa application and that it would draw no adverse conclusions "from minor discrepancies between that text and his oral evidence." 28 In NBKT v Minister for Immigration and Multicultural Affairs (2006) 93 ALD 333, Young J (with whom Gyles and Stone JJ agreed), after reviewing a number of authorities concerning the application of s 424A of the Act, said at [59]-[62]: These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific 'information' for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence-in-chief rather than in answer to questions posed by the Tribunal. In the present case, the relevant information was uncontentious factual material that formed an essential element of the decisions which were under review by the tribunal. The appellant either expressly provided or affirmed the relevant dates in response to basic propositions put by the tribunal at the hearing. The tribunal's questions arose naturally from the appellant's application. In these circumstances, and given the uncontentious factual nature of the information, I consider that the exemption in s 424A(3)(b) applies. The appellant expressly stated the date of her arrival in Australia to the tribunal at the hearing. I do not accept the appellant's argument that s 424A(3)(b) cannot apply because the date was given in response to a question posed by the tribunal. The mere fact that the tribunal elicited a response from the appellant, which confirmed an uncontentious detail of her application, does not render the information incapable of falling within the exemption in s 424A(3)(b). It is not inconsistent with NAZY or SZEEU to hold that the exemption applies in such circumstances, given the nature of the information and the context in which it was communicated. I also find that the appellant 'gave' the date of her arrival in Australia and the approximate date of her protection visa application via her visa application and the written submissions provided to the tribunal by the appellant's adviser. The appellant affirmed that the details of her application were correct. The written submissions contained a statement which expressly referred to the appellant's statement attached to her protection visa application. In that statement, which was dated 17 November 2004, the appellant said that she 'came to Australia on strength of a 457 working visa on 12.3.99'. Thus, for the purposes of s 424A(3)(b), the information was given in the written submissions: VWBF at [51]. On the basis of that approach, the first respondent contended that such information as the Tribunal relied upon was information given to the Tribunal by the appellant at the hearing so as to fall within the exemption in s 424A(3)(b) to the operation of 424A(1). 29 Alternatively, the first respondent contended, albeit perhaps with less enthusiasm, that the appellant before the Tribunal had adopted what he had put in his protection visa application and the accompanying statutory declaration subject to any additional qualifications, so that he "gave" the statutory declaration to the Tribunal for the purposes of his application for review: cf Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 at [17]. 30 Clearly, s 424A(3)(b) must be carefully applied according to its terms. It exempts from the operation of s 424A(1) information which the appellant gave to the Tribunal for the purpose of the application to the Tribunal. And the observations of Young J in NBKT 93 ALD 333 indicate that the question of fact as to whether particular information has been given to the Tribunal may sometimes be a difficult one, and sometimes the line between giving information to the Tribunal and between adverting in a general way to a collection of material (such as the material presented to the first respondent in support of an application for a protection visa) in a hearing before the Tribunal may be a fine one. Each case must be looked at on its own particular facts. By way of a comparison with the facts in NBKT 93 ALD 333, in SZGGD v Minister for Immigration and Multicultural Affairs [2006] FCA 1138 at [69] Jessup J concluded that the fact that that appellant's protection visa application contained a particular explanation for the death of his mother, which differed from that advanced by him at the hearing before the Tribunal, was a part of the reason for the Tribunal affirming the decision under review. The fact that he had conveyed that particular explanation in his protection visa information was accepted to be "information" within the terms of s 424A(1) of the Act and had not been given by that appellant in that case to the Tribunal. Consequently, his Honour concluded that there had been a failure to comply with s 424A(1) of the Act. 31 In this matter, at the hearing, the Tribunal recorded (in terms with which the appellant does not disagree) that he described the May 1994 incident in terms similar to his original statement, including an assault upon his sister, a home intrusion, the beating up of his grandfather who (the appellant then said) sustained injuries from which he never fully recovered, and the partly setting fire to the family home. The Tribunal apparently then raised with the appellant that he had said in his statutory declaration that his grandfather had died in about 1994 from that assault, because the Tribunal records (again in terms which the appellant does not dispute) that in his evidence to the Tribunal the appellant sought to explain that by saying that the 1994 incident had contributed to the death of his grandfather. As noted, by explaining that apparent inconsistency in that way, the Tribunal considered that the appellant had brought into question the cause of his grandfather's death, so that the Tribunal was not satisfied that his death had any link with terrorist-related activity. 32 In my judgment, those parts of the Tribunal's recording of its hearing indicate that the appellant acknowledged before the Tribunal that he had earlier claimed that his grandfather had been assaulted in 1994 and had died as a result of that assault. He has therefore explicitly given to the Tribunal at the hearing, in response to its questioning, the information that he had made that earlier claim in his statutory declaration with his protection visa. The Tribunal went beyond a general reference to his statutory declaration, and has elicited confirmation of that information having been given. 33 It was the nature of the explanations for that claim having been made which caused the Tribunal concern, rather than the fact of the appellant having earlier stated that his grandfather had died in 1994.

34 Consequently, in my judgment, the information that the appellant had made that claim in his earlier statutory declaration was information given to the Tribunal by the appellant in the course of the hearing before the Tribunal. The information therefore fell within s 424A(3)(b) so that s 424A(1) was not enlivened. In that respect, the appellant's contention is rejected. 35 Moreover, in my view, the Tribunal did not use the inconsistency in the two dates of death in the way the appellant alleged. It positively indicated that it did not place much weight upon the inconsistency between what the appellant is recorded to have said in that original statement and what he said at the hearing. In the particular passage of which the appellant complains, the Tribunal in fact recognises that that earlier statement was discredited. It was the appellant's attempt, notwithstanding his abandonment of that part of his earlier statement, to tie the events in 1994 to which he referred in part to the death of his grandfather which the Tribunal was concerned about. Consequently, in my view, there is no use of information which the appellant did not provide to the Tribunal at the hearing. Its process of reasoning was based upon the material exempt from the operation of s 424A(1) by s 424A(3)(b). It did not treat the earlier statement in that respect as the reason, or part of the reason, for affirming the delegate's decision, but the appellant's explanation for having made that earlier statement. That provides an additional reason why s 424A(1) was not enlivened in the way the appellant sought to contend. 36 It is not therefore necessary to consider the first respondent's alternative contention that the appellant, by explaining the circumstances in which the protection visa application and the accompanying statutory declaration had been made, had given to the Tribunal all the contents of the statutory declaration. There is, however, some apparent merit in that contention that he had thereby provided that material to the Tribunal, not as truthful information but as to the fact of having earlier given that information: cf Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155. 37 The second proposed ground of appeal involves identifying that the appellant did claim to have been persecuted by reason of his membership of a particular social group. The Tribunal acknowledged such a claim, but identified it as a claim of membership of a particular social group, being Buddhist monks. The appellant contends that his relevant social group was those involved in welfare activities for the Buddhist community, that is religious activists and social organisers within that community. 38 It is clear enough that a failure to address a Convention claim clearly made by a protection visa applicant which gives rise to a well-founded fear of persecution amounts to the Tribunal constructively failing to exercise its jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 18-19, [58]. 39 The issue between the parties was whether the appellant did identify before the Tribunal a claim to fear persecution by his membership of the more confined social group, namely those positively engaged in activities for the welfare of the Buddhist community (or as his migration agent put it: as "a religious activist [and] a social organiser within his [Buddhist] community". The first respondent submitted that no such social group was clearly identified before the Tribunal. 40 In NABE 144 FCR 1 at 18-21, [58]-[63], the Full Court (Black CJ, French and Selway JJ) discussed the circumstances in which a claim to persecution for a Convention reason must be addressed by the Tribunal. Their Honours said that the Tribunal may be required to consider a claim not expressed by the visa applicant but open on the facts, provided it is squarely raised, that is provided that it is apparent on the face of the material before the Tribunal. They said at 19, [60], that the Tribunal is not obliged to deal with claims which are not articulated and which do not "clearly arise before from the materials it". In that case, no jurisdictional error was found to exist because the putative social group put forward by the appellant was not in respect of a group which was a "substantial clearly articulated argument relying upon established facts". 41 In the submissions, counsel for the appellant referred to several passages in the material before the Tribunal which were said to have identified the nature of the claim, even if not expressly articulated.

42 They were firstly in the appellant's statutory declaration accompanying the protection visa application. (I put aside the fact that the first proposed ground of appeal is premised upon the basis that the document was not provided to the Tribunal by the appellant, and that the appellant asked the Tribunal to place no or little weight on it). It generally refers to the appellant's father in 1994 being involved with religious activities in their home area, and helping other community members, including helping to organise a religious festival which led to a hostile atmosphere between Buddhists and Muslims in the area. It also refers to the appellant from mid 2000 as a Buddhist monk engaging in community activities, and from May 2001 in religious activities in his family region where he attracted the attention of local fundamentalist Muslims. The concluding parts of that statement complains of discrimination against Buddhists generally in Bangladesh, and as he devoted himself to their interests in his family region of him attracting "fierce enmity" from the leaders of the local society. He then asserts having been persecuted "for my faith in Buddhist religion", including "selective harassment of the person as an individual or a member of a group". (That last reference is one of six descriptions of persecution, the others of which do not apparently focus upon the appellant as distinct from other Buddhists. The statutory declaration accompanied the protection visa application, which identified the fear of persecution as being for his religious belief. 43 The second group of references identified by the appellant are contained in the written submission of the appellant's migration agent to the Tribunal of 11 April 2005. It refers to the appellant as a Buddhist monk having taught members of the Buddhist community so as to attract the attention of local fundamentalist Islamists, and described him (like many others) as a "religious activist" vulnerable to persecution for his religious beliefs and his involvement in religious and welfare activities for his community. He was also said to be a social organiser. 44 The submission then, however, identified the appellant as vulnerable to persecution as a member of a religious minority and due to his religious affiliations. It said religious minorities are persecuted because they are regarded as political opponents. It referred to material about the position in Bangladesh concerning religious minorities including Hindus and Buddhists, and did not identify religious activists or Buddhist religious activists as a particular social group. It concluded that: His persecution arises from the convention-based ground of his religious belief as member of Buddhist community in Bangladesh. We, therefore, request to consider his well founded [fear] of persecution that is not private or sectional and grant him refugee status. 45 In my judgment, the second proposed ground of appeal must also fail. Upon analysis of the appellant's claims as presented to the Tribunal, he did not positively identify a claim based other than upon his religious beliefs as a Buddhist monk. Specifically, he did not either expressly, or by the articulation of the material he relied upon, identify separately a social group comprising socially active or politically active Buddhist welfare workers within the Buddhist community. At one point, his migration agent in a submission to the Tribunal describes him as "a social organiser within his community" but there is no identification of a separate and refined social group of the type now asserted: cf NABE 144 FCR at 21, [68]. The fact is, in my view, that no social group of that character was suggested to the Tribunal: cf STCB v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 556 at [39]. 46 The Tribunal recognised the appellant's claims to fear persecution on the grounds of religion, both by general discrimination against Buddhists and by reason of his religious and social welfare activities as a Buddhist monk. It recognised that the latter claim could be reformulated as membership of a particular social group, namely Buddhist monks. In doing so, it did not overlook the nature of the claim - based on the appellant's activities as a Buddhist monk. It addressed both of those claims. In my judgment, no more refined social group was raised on the material before the Tribunal. It did not commit jurisdictional error by failing to address any more refined group. 47 Finally, in any event, the findings of the Tribunal mean that the Tribunal did not accept that the appellant, whatever the reasons for him fearing harm - that is either as a Buddhist monk or as a member of a social group comprising socially active Buddhist monks or religious workers - had a well-founded fear of harm upon his return to Bangladesh. No evidence was pointed to independently of the appellant's evidence supporting the existence of such a positive social group, or of any persecution of such a social group. It rejected his claims of past harm in Bangladesh, for whatever reasons, and concluded that he had no well-founded fear of being persecuted for any Convention reason if he were to return to Bangladesh. 48 It follows in my judgment that the fresh grounds of appeal should not be permitted to be raised, and the appeal should be dismissed. The appellant should pay the first respondent the costs of the appeal. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 23 May 2007 Counsel for the Appellant: Mr R Anthony