AER20 v Minister for Immigration
[2020] FCCA 1896
•13 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AER20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1896 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (SHEV) protection visa – Whether the Authority fell into factual error 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 – Whether the Authority fell into error by failing to deal with an integer of the applicant’s claims leading to a failure to exercise jurisdiction – Whether jurisdictional error is made out – No jurisdictional error is made out – The application is dismissed. |
| Legislation: Migration Act 1958 (Cth), sub-s.36(2)(aa) |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 BBE17 v Minister for Immigration and Border Protection [2019] FCA 573 Randhawa v Minister for Immigration, Local government and Ethnic Affairs (1994) 52 FCR 437 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | AER20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 97 of 2020 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 13 July 2020 |
| Date of Last Submission: | 13 July 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 13 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr Tay, HWL Ebsworth Lawyers |
ORDERS
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $4,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 97 of 2020
| AER20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(As revised from transcript)
Introduction
The applicant is a national of Bangladesh. The applicant first arrived in Australia as an unauthorised maritime arrival on July 2013. On 1 November 2016, the applicant applied for a Safe Haven Enterprise visa (SHEV).
On 4 November 2019, a delegate of the Minister for Immigration (“the delegate”), refused the applicant his visa.
The applicant sought merits review at the Immigration Assessment Authority (“the Authority”). In a decision dated 11 December 2019, the Authority affirmed the delegate’s decision to refuse the applicant a protection visa
The applicant now seeks judicial review of the Authority’s decision.
The Immigration Assessment Authority’s Decision
At paragraph 5 of its decision, the Authority set out the applicant’s claims. These include, a dispute that the applicant had with a neighbouring shop owner, as well as the fact that he was a supporter of the Jamaat-E-Islami (“JI”) political party. The applicant claimed that he was in fear of being attacked by rival Awami League (“AL”) supporters. One of the applicant’s friends told him that AL members were looking for him. The applicant fears that the neighbouring shop owner and/or AL members will kill him.
Paragraphs 9 through to 18 of the Authority’s decision deal with issues relating to the neighbouring shop owner. The applicant claimed that the neighbouring shopkeeper beat him two or three times, when the applicant’s business was running. It was noted in the applicant’s protection visa interview, that he stated he had sold his shop in 2008, which was many years before he left Bangladesh. The applicant claimed that he had beaten up the shop owner just before leaving Bangladesh, as an act of revenge.
At paragraph 16 of its decision, the Authority noted that whilst the applicant consistently claimed that he was a successful shop owner, was threatened by a neighbouring shop owner and beaten by him, the Authority was not persuaded by this claim. The applicant was unable to provide relevant detail in relation to the claim and appeared to only recite the script of his interview, which did not come across as if recalling from a real-life experience. The Authority found it implausible that the applicant would, three weeks prior to departing Bangladesh for an extended period of time, decide to revisit the neighbouring shop owner and commit an act of violence upon him. In so doing, it would leave the applicant’s wife and daughter without protection. It did not make sense that the applicant would undertake this action and put his wife and daughter act risk of harm, following his departure. The Authority was of the view that the applicant fabricated this claim.
Paragraphs 19 through to 39 of the Authority’s decision, deal with considerations in relation to fear of harm as a JI supporter. The applicant stated that he feared returning to Bangladesh because of his involvement in the politics of JI, together with an incident on 5 May 2013, when police and other authorities killed thousands of JI supporters in Bangladesh. The Authority noted that the applicant had told the delegate in his interview, that the main reason for leaving Bangladesh was the applicant’s dispute with his shopkeeper neighbour, rather than political violence. At paragraph 23 of its decision, the Authority noted that the applicant had told the delegate in his interview that whilst he supported JI, he did not indicate that he was a member of, or that he held any prominent position within the party.
At paragraph 29 of its decision, the Authority noted the applicant’s evidence regarding his involvement in JI was vague and rather repetitive, failing to provide any constructive substance to his claims, other than that he attended meetings and gatherings. The applicant was unable to provide any detail as to when and where these meetings took place, how many people attended, or what was discussed. Whilst the applicant mentioned at times the incident of 5 May 2013, he did not attempt to demonstrate any knowledge of other important events in JI’s recent history, since his departure from Bangladesh
At paragraph 30 of its decision, notwithstanding credibility concerns in general as regards to the applicant, the Authority was prepared to accept that he was a low level JI supporter, who occasionally attended meetings, gathering and rallies. The Authority did not accept that the applicant was a JI member or that he held a prominent position within the party or met the Secretary General. The Authority was of the view that the applicant had embellished his claims. The Authority did not accept that AL members are looking for the applicant and that at the time he left Bangladesh, he was of no adverse interest to AL. The Authority also noted that the applicant did not claim to be politically active in Australia, such that he may have attracted an adverse profile with the AL.
Paragraphs 31 and onwards of the Authority’s decision, deal with country information available to the Authority. It was noted that authorities in Bangladesh, have in particular, targeted for arrest the JI leadership, few of whom remain free and active. Other targets include prominent members and in some cases family members. The Authority was not satisfied that the applicant, as a low level supporter of JI, fitted the profile for arrest or persecution, or significant harm on his return to Bangladesh, as a result of being a low level supporter of JI.
Paragraphs 40 through to 44 of the Authority’s decision, deal with claims relating to being a failed asylum seeker, who departed Bangladesh illegally. The Authority noted at paragraph 42 of its decision, in particular that Bangladesh accepts both voluntary and involuntary returnees. The Department of Foreign Affairs and Trade (“DFAT”) assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention, regardless of whether they have returned voluntarily or involuntarily. The Authority was not satisfied that the applicant faced a risk of harm if returned for this reason.
Paragraphs 46 through to 50 of the Authority’s decision deal with complimentary protection considerations. For the same reasons, the Authority found that the applicant was not at real risk of harm if returned.
Accordingly, the Authority affirmed the delegate’s decision.
Grounds of Appeal
The Grounds of the application are as follows:
Ground One:
The Authority fell into factual error 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.
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.
No particulars were provided in amplification of the above grounds.
The Applicant’s Submissions
The applicant was unrepresented when he appeared before the Court. The applicant’s previous legal representative withdrew from the matter some seven days prior to the listed hearing date. Despite Court orders, no written submissions in support of the grounds of the application, were filed with the Court.
Prior to the hearing commencing, the Court ensured that the applicant had in his possession a copy of the Court Book, together with the first respondent’s submissions. The Court ensured that the applicant had an opportunity for the submissions to be interpreted to him. The applicant was also provided with a pen and paper to make notes.
The applicant told the Court that he came to Australia because of the fact that he would be killed, due to his involvement with politics in Bangladesh. The applicant also stated that the other business owner who he was in dispute with, was also looking for him. The applicant said that the Authority did not understand his circumstances and that he came here, as he was persecuted in Bangladesh. It was submitted by the applicant that Bangladesh is not a safe place like Australia. People can get away with anything. The applicant stated he will be killed if he goes back.
The applicant was reminded that the Court could not undertake merits review and was restricted to jurisdictional error. The matters that the applicant had raised, only went to merits review and not legal error. The applicant replied that he was not sure what his previous lawyer has alleged in the application filed with the Court. The grounds of the application were then read to the applicant. The applicant stated that he had never told his former lawyer that there was legal error in the Authority’s decision.
Following the oral submissions by the legal representative for the first respondent, the applicant was asked if he wished to say anything further. The applicant stated “in my country people can be killed for any reason”. The applicant was also worried that if he was sent back to Bangladesh, that his daughter, who he has not seen for 7 years, might be harmed.
The First Respondent’s Submissions
In relation to ground one, the legal representative for the first respondent notes that the applicant does not articulate what factual assumptions and conclusions he seeks to impugn. It is submitted by the legal representative for the first respondent, that each of the findings made by the Authority was supported by evidence and for this reason alone, the first ground must fail.
If the true meaning of ground one is to express disagreement or opposition to the Authority’s findings, it is submitted that this assertion seeks to engage the Court in merits review, which it cannot do.
In response to the second assertion, contained within this ground, it is submitted by the legal representative for the first respondent, that it is factually incorrect. The Authority expressly discussed the circumstances surrounding the return of the applicant to Bangladesh, with reference to relevant country information (see [40] - [44] of the Authority’s decision).
Further, even if the Authority did not explicitly consider the circumstances by which an undocumented person can be returned to the receiving country, it is submitted that this of itself, cannot establish error. There is no statutory duty which requires the Authority to consider such circumstances. Rather, what is required by s 36(2(aa) of the Migration Act 1958 (Cth) (“the Act”), is for the Authority to consider whether or not there are substantial grounds for believing that, as a necessary and foreseeable consequence of the noncitizen being removed, there is a real risk that the non-citizen will suffer significant harm.
In relation to ground two, this alleges that the Authority did not deal with an integer (unspecified) of the applicant’s claims. The Authority is not required, in its decision, to avert to every single piece of evidence or submission in its reasons for decision (see BBE17 v Minister for Immigration and Border Protection [2019] FCA 573 at [29]). The Authority considered the applicants claims at paragraph 5 of its decision and then considered these claims against the relevant evidence advanced by the applicant, together with the most recent country information. In so doing, it is submitted by the legal representative for the first respondent that the Authority, adequately fulfilled its statutory duty.
In terms of the matters raised in oral submissions, they went solely to merits review, not jurisdictional error.
Consideration
It is well-established that the Authority is not required to accept uncritically, any and all claims made by the applicant (see Randhawa v Minister for Immigration, Local government and Ethnic Affairs (1994) 52 FCR 437 at [451]).
Ground one simply amounts to an unarticulated claim which seeks to impugn the Authority’s findings, without pointing to any particular failure by the Authority in coming to the conclusions that it did, or the evidence which it is said does not support the findings. The first part of ground one does not identify any jurisdictional error, on the part of the Authority and appears more to be a disagreement with the findings and conclusions of the Authority. The applicant’s complaints, such as they are, invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54]).
It is clear that the Authority did consider relevant country information at paragraphs 40 – 44 of its decision that included the circumstances under which an undocumented person could return to Bangladesh. The Court agrees with the first respondent that this claim fails at the factual level.
In terms of ground two, the Authority clearly set out the applicant’s claims at the commencement of its decision at paragraph 5. Those claims were then discussed in detail during the balance of the Authority’s decision. The applicant has not pointed to any particular integer that was not dealt with by the Authority. The reasons of a high volume body like the Authority, should not be scrutinised with ‘an eye keenly attuned to error’ (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]). The Court is satisfied that the Authority considered the applicants claims, against the evidence. It was not convinced as to the credibility of the applicant, in relation to some of the matters he raised. The Court is satisfied that this finding was open to the Authority. The Court is satisfied that each of the applicant’s claims and any integers contained therein, were considered by the Authority. The claim cannot be made out. No jurisdictional error arises.
As the applicant is unrepresented, the Court has perused the Authority’s decision. The Court can find no jurisdictional error that has not been articulated by the applicant.
Conclusion
Accordingly, the application is dismissed
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 14 July 2020
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