Aen20 v Minister for Immigration

[2020] FCCA 2795

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEN20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2795

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made factual assumptions and or conclusions without supporting evidence – whether the Authority failed to deal with an integer of the applicant’s claim – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 476

Applicant: AEN20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRUAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 93 of 2020

Judgment of: Judge Street

Hearing date: 13 October 2020

Date of Last Submission: 13 October 2020

Delivered at: Sydney

Delivered on: 13 October 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Mr G Pasas, Clayton Utz, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 13 October 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 93 of 2020

AEN20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 6 December 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Bangladesh and arrived in Australia as an unauthorised maritime arrival on 21 February 2013. 

3. In summary, the applicant claimed to fear harm from the Bangladesh National Party (“BNP”) and the Awami League party (“AL”) or the Bangladesh authorities and by reason of his illegal departure and being a failed asylum seeker. 

4. On 1 November 2019, the Delegate found that the applicant failed to meet the criteria for the grant of the Safe Haven Enterprise visa. The Authority wrote to the applicant on 6 November 2019 explaining that the application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction providing the applicant an opportunity to put on new information and submissions. 

5. The Authority, in its reasons, identified the background to the Safe Haven Enterprise visa application and had regard to the material given by the Secretary under s 473CB of the Act. 

6. The Authority also referred to the submissions and the information that was new information and, in respect of a particular document from the United Nations, was not satisfied that it was new information to which the Authority should have regard. It is apparent on the face of the Authority’s decision that the Authority took into account the whole of the provisions of s 473DD of the Act. The Authority also took into account translations of untranslated documents that had been given to the Delegate. 

7. The Authority found that the applicant was born in a particular village in a certain district and that his parents and sisters remain in Bangladesh. 

8. The Authority referred to the applicant’s claims that his last address was a particular place in a particular district and that he had lived there for eight or nine years. The Authority referred to the applicant’s Safe Haven Enterprise visa application indicating a history that he had remained in this particular place from 2004 until his departure to Australia. The Authority found that the latter identification of his address was accurate. 

9. The Authority referred to documents concerning an incident in which the applicant alleged his house was invaded by AL supporters and that the police came and located two pistols. The Authority identified that the applicant had provided a different narrative in his statutory declaration. The Authority also identified that the applicant discussed this central event in his Safe Haven Enterprise visa interview and alleged that the event occurred in 2007. 

10. The Authority referred to the applicant’s assertions about taking a rickshaw to a station and then catching a train to the particular district where he alleged he remained until his departure from Bangladesh in 2013. The Authority also explored with the applicant whether he had had problems whilst living in the particular district and he indicated that he did not.  The Authority also referred to the three documents tendered by the applicant in support of this alleged central incident. 

11. The Authority referred to the applicant’s claim in relation to his family home being invaded one night in late 2007 by supporters of the AL.  The Authority referred to the difference in time in respect of the alleged raid and was not satisfied that the documents were genuine and concluded that the applicant was not a witness of truth. The Authority did not accept that the applicant was involved in an arms shipment organised by the BNP or that he was attached by the BNP or AL supporters or that he was the subject of any criminal investigation or charges. 

12. The Authority proceeded to consider whether the applicant faced a risk of harm due to actual or imputed political opinions. The Authority referred to the applicant’s answer to the Delegate’s questions about the reasons why he supported the BNP and preferred the applicant’s evidence that he had given in 2013 and concluded that he was not involved in politics whilst living in Bangladesh. The Authority did not accept that the applicant was a supporter of the BNP or would be imputed with a pro-BNP opinion. 

13. The Authority referred to having rejected the applicant’s central claim that he was assaulted by supporters of the AL and BNP and that he had been charged with weapon offences. The Authority referred to having found that the applicant was not involved in politics in Bangladesh and found that the applicant would not face a real chance of harm on the basis of any actual or imputed political opinion. 

14. The Authority was not satisfied that the applicant faced a real chance of any harm in Bangladesh on the basis of having departed illegally. 

15. The Authority was not satisfied that the applicant faced a real chance of any harm in Bangladesh on the basis of having made an application for asylum in Australia. 

16. The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criterion in s 36(2)(a) of the Act. 

17. The Authority then turned to the issue of complementary protection and took into account the findings that the Authority had made under the Refugee Convention. The Authority referred to the real chance and real risk test involving the same standard. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Bangladesh, there was a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 10 January 2020. On 13 February 2020, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the explanation given by the Court. 

3. The applicant orally submitted that he had told the Authority the truth. 

4. The Authority made adverse credibility findings, having taken into account that the applicant had provided documents that were not genuine.  Those documents refer to a raid on the applicant’s house at 10:00pm on 27 October 2012. That contradicts the applicant’s claim that this occurred at 8:00am in 2007. 

5. Notwithstanding the applicant’s disagreement with the adverse findings, those adverse findings were open for the reasons given by the Authority.  The adverse credibility findings were not made on trivial or insignificant matters. The applicant’s disagreement with the Authority’s rejection of the applicant’s credibility does not identify any jurisdictional error.

6. The applicant maintained that he would face harm on return to Bangladesh. The Authority found that the applicant does not face a real chance or a real risk of serious harm or significant harm on return to Bangladesh. The applicant’s oral submissions in substance invited impermissible merits review and did not identify any jurisdictional error. 

The grounds

1. The grounds in the application are as follows: 

   Ground One:

   The Authority fell into error by making factual assumptions and conclusions that were not supported by evidence and by failing to articulate the circumstances under which an undocumented person can be returned to the Receiving Country.

   Particulars

   In dealing with the Applicant’s claims under Section 36(2)(aa) of the Migration Act, the Administrative Appeals Tribunal failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.

   Ground Two:

   The Authority fell into error by failing to deal with an integer of the Applicant’s claims leading to a failure to exercise jurisdiction.

Ground 1

1. In relation to ground 1, no particulars had been provided identifying the alleged factual assumptions or conclusions that were not supported by evidence.

2. The Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. The adverse credibility findings cannot be said to lack an evident and intelligible justification, given the finding that the three documents provided by the applicant were not genuine. That finding was also logical and open for the reasons given by the Authority. 

3. No claim was advanced by the applicant, or arose on the material before the Authority, that the applicant was an undocumented person. The applicant provided a birth certificate and certificate of nationality that identified the applicant as being a citizen of Bangladesh. 

4. No jurisdictional error is made out by the substantive paragraph in ground 1. 

5. In relation to the particulars to ground 1, these refer to an alleged error in relation to complementary protection. The Authority correctly identified the relevant law in relation to complementary protection including in an attachment of applicable law to the Authority’s decision. 

6. The Authority was entitled to take into account the adverse findings in relation to the Refugee Convention in considering whether the applicant met the criteria under complementary protection. The Authority correctly identified that the real risk and real risk test were the same. There was no misapplication of the statutory criteria in respect of the assessment by the Authority as to whether the applicant met the criteria for complementary protection. 

7. No jurisdictional error is made out by the particulars to ground 1. 

Ground 2

1. In relation to ground 2, unparticularised, this ground is incapable of giving rise to any jurisdictional error. On the face of the Authority’s decision, the Authority made dispositive findings in respect of the whole of the applicant’s claims that were open for the reasons given by the Authority. No integer has been identified that the Authority failed to consider. 

2. No jurisdictional error is made out by ground 2. 

3. As the application fails to make out any jurisdictional error, the application is dismissed.   

I certify that the preceding thirty-four (34) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 13 October 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 13 November 2020