SZUZK v Minister for Immigration and Border Protection

Before the Tribunal 9 On 1 August 2013, the appellants applied to the Tribunal for merits review of the delegate's decision. The Tribunal hearing took place on 2 April 2014. On 30 July 2014, the Tribunal refused the grant of protection visas. The Tribunal had considerable concerns about the overall credibility of the appellants. Part of those credibility concerns related to the long delay in making Refugees Convention claims, especially those in relation to fears of harm by reason of political opinion or religion. The Tribunal described the claims as having been expanded with the passage of time and noted that the appellants had been represented by a migration adviser at all times. Some of the claims were found to be contradictory, such as the claim of persecution for belonging to the Ahmadi religious sect and a subsequent claim of persecution for being an atheist. 10 The Tribunal referred to the appellants returning to Bangladesh for a month prior to lodging the protection visa applications, finding this to be inconsistent with a fear of prosecution by the husband in particular. The Tribunal: (a) found that there was no real risk to the husband of persecution or significant harm as a result of his religion given: (i) his evidence that he was not a practising Ahmadi; (ii) the country information indicating that the government provides protection to the Ahmadi community; and (iii) the small number of attacks on Ahmadis in recent years (and that all attacks were carried out on active communities seeking to practise their faith); (b) was not satisfied that there was a real chance or risk of harm to the husband as the result of atheist beliefs; (c) found there was no independent information or credible evidence to support a conclusion that the husband had a well-founded fear of persecution based on membership of the BWP; (d) did not accept that that there was a real chance that the husband would face serious harm amounting to persecution as a childless man in Bangladesh; (e) found that the husband would not be denied medical treatment for sleep apnoea for a discriminatory Convention reason or suffer significant harm under the complementary protection regime, although the full range of treatments for sleep apnoea may not be available in Bangladesh when compared to Australia; (f) found no credible evidence of the possibility of the husband being targeted for abduction due to perceived wealth, a finding which the Tribunal noted would also apply to the wife though it was not directly raised on her behalf; (g) found that there was no evidence before it that the wife would be denied or unable to obtain medical services for sarcoidosis in Bangladesh for a discriminatory reason - the limited availability of those services was not Convention persecution and in any event did not constitute significant harm for the purposes of the complementary protection regime; (h) had serious doubts about the wife's claim of physical harm by her husband's family and was not satisfied that the forms of harm met the threshold of severity for persecution; (i) found that the harm that the wife claimed to experience did not meet the threshold of significant harm for complementary protection, especially in the absence of the necessary state of mind - as the Tribunal noted, the relevant definitions in s 5(1) of the Migration Act 1958 (Cth) of "torture", "cruel or inhuman treatment or punishment" or "degrading treatment or punishment", required that those harms must be intentionally inflicted or caused.

In the Federal Circuit Court 11 The amended application advanced before the primary judge raised two grounds, which were maintained on appeal in this Court. 12 The first ground of review before the primary judge was that the Tribunal had made a legal error in failing to consider the full integers of the wife's claim. The particulars for that ground referred to the husband as an Ahmadi man, and to the wife as a childless Muslim woman who claimed to fear domestic violence. The central complaint was that the Tribunal, at [73] of its decision, having not accepted that the husband had a well-founded fear of persecution for reason either of his political opinion or his religion, erred in concluding that it necessarily followed that neither did the wife. 13 The second ground of review before the primary judge, and maintained on appeal, was that the Tribunal had made a legal error in failing to consider its own guidelines on vulnerable persons when taking evidence from the wife. The particulars of that ground were that the Tribunal, at [77] of its decision, had noted the mental vulnerability of the wife as indicated by the psychological report submitted. 14 With the agreement of the Minister I treated the notice of appeal referring to those two grounds of review as alleging error on the part of the primary judge in failing to find jurisdictional error on the part of the Tribunal. The paragraphs below summarise the primary judge's consideration of the two grounds of review.

First ground of review and appeal 15 The first ground of review was considered by the primary judge at [18] to [21]. His Honour observed that the Tribunal had concluded that the husband did not face a real chance of harm of any kind as a consequence of his political opinion and that he would not engage in any political activities on his return to Bangladesh. His Honour also observed that the Tribunal, having accepted the husband's evidence that he did not practise the Ahmadi faith, also found that the husband would not be identified as an atheist in Bangladesh and therefore was not at risk of harm on this basis. His Honour therefore concluded that the Tribunal's findings at [73], which were the basis for this ground of review, should be understood in that context. His Honour found that all the Tribunal was saying was that, having rejected the husband's claim to fear harm because of his own alleged (but not accepted) religious or political activities, there was no basis to suggest that the wife would suffer harm because of her husband's alleged religious or political activity. 16 Put another way, his Honour was pointing out that the Tribunal had found that because the primary basis for persecution in this respect was not made out by the husband, a derivative basis for persecution on the part of the wife based on those primary grounds was also not made out. The Tribunal's conclusion at [73] reflected the absence of any evidence of a basis for the wife fearing persecution independent of those derived from her husband's claim. 17 The first ground of review was therefore rejected by the primary judge. 18 There were no written submissions raising any error on the part of the primary judge. The appellants reproduced and relied upon their submissions before the primary judge. 19 At the hearing of the appeal, despite requests to the husband (who spoke on behalf of himself and of his wife with her express agreement) to identify any error on the part of the primary judge in reaching that conclusion, no such submissions were made. All of the submissions took issue, directly or indirectly, with the factual findings made by the Tribunal. 20 The submissions for the Minister pointed out that no attempt had been made to identify any appellable error by the primary judge and contended that no such error was apparent. I have independently reviewed both the Tribunal's reasons and the primary judge's reasons and can find no basis for disagreeing with the Minister. There does not appear to be any appellable error by the primary judge. Further, I cannot see anything wrong with the Tribunal concluding that a derivative basis for persecution (even though none was asserted by the wife) was not available once the primary basis asserted by the husband was found not to be made out. 21 It follows that the first ground of appeal must fail.

Second ground of review and appeal 22 The second ground of appeal was treated expansively by the primary judge by not only addressing it on its face, but also by giving it an extended scope in considering the underlying issue raised. In terms of the ground on its face, the primary judge noted that the guidance manual was not a binding direction of the type contemplated by s 499 of the Migration Act and accordingly did not constitute a relevant consideration in the mandatory sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. In my view that characterisation of the guidance manual is correct. 23 The primary judge also treated this ground more expansively as raising the issue of whether the Tribunal had complied with its obligations under s 425 of the Migration Act. His Honour noted that s 425(1) required the Tribunal to "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review". His Honour noted that the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 interpreted this provision as requiring that an invitation under s 425 be "real and meaningful", and that this obligation existed whether or not the Tribunal was aware of actual circumstances which would defeat that obligation. 24 In SCAR, the Tribunal had not been aware that the visa applicant, at the time of giving evidence to the Tribunal, had received news of his father's death and was not in a fit condition for the hearing. The Tribunal therefore fell into inadvertent jurisdictional error. That is, the process adopted by the Tribunal was not rescued by a bona fide but failed attempt to comply with s 425(1). 25 The primary judge referred to authority to the effect that the SCAR principle did not extend to the suboptimal presentation of a visa applicant's case. The Tribunal was not obliged to conduct an inquiry to discover whether the case might have been better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at 586 [36]-[37], 588 [48]-[49] and 598 [87]. 26 In applying both SCAR and SZNVW, the primary judge said that there was nothing in the evidence before him that suggested that the wife's mental health was such as to "deny [her] the capacity to give an account of [her] experiences, to present argument in support of [her] claims, to understand and to respond to questions put to [her]". His Honour therefore concluded that there was no basis for the implied contention that the Tribunal did not offer the appellants a "real and meaningful" invitation under s 425 of the Migration Act or that there was a "subversion" of the intended operation of that provision such that the Tribunal failed to discharge properly its statutory functions with respect to the conduct of the merits review. 27 The Minister submitted that the primary judge did not err by failing to consider the second ground of review, either in the express sense referring to the guidance manual or in the extended sense of raising a breach of the Tribunal's obligations under s 425 of the Migration Act. As with the first ground of review and appeal, I have considered both the Tribunal's reasons and the primary judge's reasons carefully and agree with the Minister's submission. I can discern no legal error, let alone any jurisdictional error, on the part of the Tribunal and no error on the part of the primary judge in relation to the second ground of review. 28 As I endeavoured to explain to the appellants during the course of the hearing, neither the primary judge nor this Court has any role in conducting an assessment of the eligibility of the appellants for protection visas. The more limited grounds of judicial review available before the primary judge and on appeal before this Court are not made out. 29 The second ground of appeal must also fail.

Other issues before the primary judge and appeal 30 At the Federal Circuit Court hearing on 9 October 2015, the primary judge granted the appellants leave to file further submissions, drawing attention to particular pages of the Court Book or the transcript of the Tribunal hearing which established a claim by the wife relating to religion or childlessness that had been overlooked by the Tribunal. His Honour stated that the purpose of granting that leave was to give the appellants the opportunity to make good their claim made orally at the hearing before him that the Tribunal had erred in that regard. 31 That further material was received by his Honour and was categorised with the assistance of counsel for the Minister. As explained by the primary judge, and as substantially confirmed in the hearing before me, this extended challenge mostly concerned complementary protection issues arising from the wife's status as a childless woman in Bangladesh. 32 His Honour referred to and quoted s 36(2)(aa) of the Migration Act and in particular the requirement of demonstrating that there were "substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm". His Honour then referred to the definitions that appeared to arise on the material before the Tribunal and before his Honour relating to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, and the definitions pertaining to each of those classes of significant harm. 33 The complaint made by the appellants of the primary judge's treatment of this extended aspect of their application for review, which was not expressly reflected in the notice of appeal, was that his Honour had not given enough of an explanation for rejecting the challenge to the Tribunal's decision. 34 The primary judge observed that the Minister had conceded that a claim arose on the material before the Tribunal to the effect that the wife feared that she would suffer psychological harm caused by her family members as a result of her childless status. His Honour observed at [40] that the Tribunal had found that there was no real chance that the wife would suffer "persecution at the hands of her husband's relatives for any reason", including because she was a childless woman. The primary judge accepted the Minister's submission that this was a finding of sufficient breadth to cover the claim that the wife would suffer serious harm in the form of psychological harm. 35 His Honour further observed at [41] that the Tribunal had found that any harm that the wife might suffer as a result of her childless status would not result from intentionally inflicted acts or omissions by which pain or suffering resulted, or from conduct intended to cause extreme humiliation. The Tribunal found that this would not, in any event, reach the threshold for any of the forms of "significant harm". His Honour noted that the Tribunal referred to the evidence that indicated that the behaviour of others was "not intended to cause pain or suffering or extreme humiliation", and in most cases "such mistreatment is thoughtless and insensitive conduct arising from ignorance…". 36 His Honour concluded that, given the Tribunal's finding of no intention to cause harm, the Tribunal was entitled to conclude that the wife did not face a real risk of suffering significant psychological harm by reason of her childless status in the sense contemplated by the complementary protection regime. 37 Finally, his Honour noted that the Tribunal had expressed considerable doubt about the wife's claim that she had been physically harmed by her husband's family and rejected her claim that she had been attacked in her house. The Tribunal had concluded that the husband would not be at risk of either significant or serious harm by reason of his childless status. 38 The primary judge observed that the Minister had conceded that a claim arose on the material before the Tribunal that the wife had been harmed by her in-laws for refusing to convert to the Ahmadiyya religion. His Honour observed at [43] that the Tribunal had expressed considerable doubt that the alleged incident occurred and had concluded that the wife would not suffer serious harm or significant harm at the hands of her in-laws by reason that she was not an Ahmadi. 39 In relation to extended arguments put to me by the husband on behalf of both the appellants in relation to the further submissions that the primary judge allowed, essentially on the topic of complementary protection, I had regard to and have carefully considered the additional materials that were brought to my attention during the course of the hearing of the appeal. None of those matters went further than to disagree with the conclusions reached by the Tribunal and subsequently reached by the primary judge in his consideration of the express and further review grounds advanced at the Federal Circuit Court hearing. 40 While the husband made repeated references to procedural fairness during the course of the hearing of the appeal before me, when examined those references did not in truth refer to or constitute anything more than a failure to make the findings that the appellants wished the Tribunal to make, and wished the primary judge to make. The Minister submitted that the appellants had not made out the suggestion that the reasons of the primary judge, especially at [40] and [41], were not enough of an explanation as to why the application for review before his Honour had failed. I agree with the Minister's submission. While it is clear that the appellants had difficulty grappling with the conclusions that had been reached and strongly disagreed with them, the reasons for their application for review failing before the primary judge are, in my opinion, clear and cogent.

Conclusion 41 The appellants have failed to demonstrate that the decision of the Tribunal was affected by any jurisdictional error, and have failed to show any appellable error on the part of the primary judge. Even on an extension of the appellants' grounds, the appeal must fail. The appeal is therefore dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.