AHH20 v Minister for Immigration
[2020] FCCA 1518
•10 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHH20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1518 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Safe Haven Enterprise visa (SHEV) – whether the Authority fell into legal error – legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), s,5, 32aa, 36(2)(aa) Bangladesh Emigration Ordinance Act |
| Cases cited: Abebe v Commonwealth [1999] 197 CLR 510 AZK18 v Minister for Immigration & Anor [2020] FCA 331 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 197 ALR 389 FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 Hossain v Minister for Immigration and Border Protection 359 ALR 1 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] 207 ALR 12 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZTAL v Minister for Immigration and Border Protection [2017] 262 CLR 362 SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 614 |
| Applicant: | AHH20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 149 of 2020 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 10 June 2020 |
| Date of Last Submission: | 10 June 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 10 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Okereke-Fischer |
| Solicitors for the Applicant: | Australian Business Underwriter |
| Solicitors for the Respondents: | Ms Xiao – Clayton Utz |
ORDERS
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 149 of 2020
| AHH20 |
Applicant
And
| MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICLTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EXTEMPORE JUDGMENT
(As revised from transcript)
Introduction
The applicant who is from Bangladesh, arrived in Australia as an authorised maritime arrival on 30 January 2013.
On 26 July 2016, the applicant lodged an application for a Safe Haven Enterprise visa (“SHEV”) or protection visa.
On 30 October 2002, a delegate of the Minister for Immigration (“the delegate”), refused the applicant's Protection visa.
The matter was then referred to the Immigration Assessment Authority (“the Authority”), for a merits review.
In a decision dated 18 December 2019, the Authority affirmed the decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Authority's decision.
The Immigration Assessment Authority's decision
Given the limited nature of the grounds of appeal that are set out below, it is not necessary to summarise the Authority's decision in full.
At paragraph 10 of the Authority’s decision, based on two copies of a Bangladeshi birth certificate, both written in English, together with a copy of a document entitled "Certificate" written by the Local Council Chairman, the Authority accepted the applicant's name as claimed, and that he is a national of Bangladesh.
The Authority found that there was no evidence before it to suggest that he had a presently existing right, to enter and reside in a country apart from Bangladesh. Accordingly, the Authority found that Bangladesh, is the applicant's receiving country for the purposes of the review.
Paragraph 31 of the Authority’s decision, deals with issues relating to the applicant leaving Bangladesh without a valid passport. The Authority acknowledged that if a person leaves Bangladesh other than in accordance with legislation, they may face up to a one year of imprisonment, a fine or both. However, country information before the Authority indicated that these penalties did not seem to be enforced.
The Department of Foreign Affairs and Trade (“DFAT”) had no evidence to suggest that recent returnees to Bangladesh had received adverse attention from Authorities or others. It found that Authorities in Bangladesh may take an interest in the higher profile individual who had engaged in political activities outside Bangladesh, however, this was unlikely for returnees without such a profile. The Authority found that the applicant did not have such a profile.
At paragraph 32 of its decision, the Authority concluded, that it was not satisfied that there was a real chance the applicant would suffer any harm because he departed Bangladesh illegally, and because he had sought asylum overseas. The Authority was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh and did not fit either the refugee requirements under s 32AA Migration Act 1958 (Cth) (“the Act”), or the complementary protection requirements under s 36(2)(aa) of the Act.
Grounds of Judicial Review
On 24 February 2020, a Registrar of this Court, made orders, inter alia, that the applicant was to file and serve any amended application giving complete particulars of each ground of review on or before 9 April 2020. Other orders were also made for the filing and serving of submissions.
On 27 May 2020, an amended application containing two new grounds of review and seemingly abandoning previous grounds of review, was filed with the Court along with written submissions. No explanation or apology was offered either to the Court or the first respondent as to the reasons for the late filing of the amended application and grounds of review other than some material contained in an affidavit that was filed by the solicitor for the applicant.
There seems to be an expectation that the Court will always grant leave to rely upon an amended application. Given the amended application was filed outside the timeframe specified in the orders of 24 February, the first respondent opposed grant of leave to rely upon the amended application. It was agreed between the parties that the appropriate way to deal with this situation was to consider the merits of the matter and then make a decision as to whether there was merit, and if so, whether or not leave should be granted.
The new grounds are as follows:
Ground One
Jurisdictional Error. The Authority fell into legal error by misapplying the definition of "receiving country" as defined under s5 of the Act in that it did not determine whether the applicant was a national of Bangladesh "solely by reference" to the law of Bangladesh.
Particulars
i.Section 5 of the Act defines "receiving country" to mean:
a)the country to which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
b)if the non-citizen has no country of nationality - a country of his or her formal habitual residence, regardless of whether or not it would be possible to return the non-citizen to the country.
ii.Section 36(6) and (7) of the Act states:
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication affect the interpretation of any other provision of the Act.
iii.The Authority notes, “In the 2016 SHEV application, the applicant indicated he left Bangladesh illegally and that he has never held a passport” (CB103 at [30]). In his entry Interview form he left blank the section titled “Details of passport used to travel enroute to Australia; (CB11).
iv.The Authority concluded, “I find Bangladesh is his receiving country for the purposes of this review.(CB96 at [10])
Ground 2
Jurisdictional Error. The Authority failed to take into account a relevant consideration, failed to ask the right question or failed to consider, whether the Applicant faced Significant Harm pursuant to the complementary protection regime in respect of his Illegal Departure Claim, leading to a failure to exercise jurisdiction, giving rise to jurisdictional error.
Particulars
a)The Authority notes: “In the 2016 SHEV application the applicant indicated he left Bangladesh illegally and that he has never held a passport” (the “Illegal Departure Claim”) (CB103 at [31]).
b)In his Entry Interview form the Applicant left blank, the section titled "Details of passport used to travel enroute to Australia". (CB11)
c)The Authority stated “Country information before me indicates that Bangladeshis require a valid passport and visa (depending upon the destination country) to depart from Bangladesh. If they leave otherwise than in accordance with legislation they may face up to one year imprisonment or a fine or both” (the “Country Information”) (CB103 at [31]).
d)The Authority accepted that he departed Bangladesh illegally. (CB103 at [32]).
The Applicant's submissions
Counsel on behalf of the applicant, submitted in relation to ground one, that the Authority's conclusions at paragraph 31 of its decision assumed, albeit erroneously, that at the time of return, the applicant would be received as a Bangladeshi national in circumstances where the Authority accepted that he had departed Bangladesh illegally and is not the holder of a Bangladeshi passport.
The name given in the applicant’s entry interview is different from the name on his birth certificate. The applicant has two different birth certificates issued on different dates. The delegate found that a few aliases had been recorded under the applicant's name in the departmental system. None of the identifying documents relied upon, included a picture identification.
It was submitted that the Authority failed to determine solely by reference to the law of the relevant country whether or not the applicant was a national of that country. Reliance was placed on the decision of the Full Court of the Federal Court of Australia in FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106 (“FER17”). It was submitted that in the absence of a genuine Bangladeshi passport or any other conclusive evidence of citizenship, pursuant to Bangladeshi citizenship laws, the Authority erred in assuming and concluding that the applicant was a Bangladeshi national without reference to the citizenship and immigration laws of Bangladesh.
The applicant submitted that the fact that a country is a country of birth, is not conclusive for nationality. The Authority failed to refer to Bangladeshi law. The meaning of "a national" and "nationality" for the relevant purpose of the Act properly construed, does not extend to a person who is not presently able to demonstrate that he is a Bangladeshi national.
It was submitted that the Authority accepted that the applicant departed Bangladesh illegally and has never held a passport. However, the Authority failed to express whether the fact that the applicant does not hold a Bangladeshi passport would frustrate his removal to Bangladesh, and whether that in itself would constitute substantial grounds for believing it is a necessary and a foreseeable consequence of being removed from Australia, that there is a real risk that he would suffer significant harm if removed to Bangladesh.
It was submitted that the Authority further erred by quoting the applicant's possible capacity to obtain a Bangladeshi passport to the applicant being a Bangladeshi national. It was submitted that there was no evidence before the Authority to support the conclusion that the applicant:
a)can be returned to Bangladesh without a passport; and
b)does not face a real chance of harm as a result of departing Bangladesh without a passport. It was submitted the error is such that it falls within the jurisdictional error as set out in Hossain v Minister for Immigration and Border Protection 359 ALR 1 at paragraphs [24] to [25] and [30].
In relation in ground 2, it was submitted that the Authority failed to take into account a relevant consideration being, whether or not he would face significant harm due to his illegal departure. It was submitted that the applicant did not expressly claim to fear harm in respect of departing Bangladesh illegally or returning to Bangladesh as a failed asylum seeker. As a result, the Authority was required to undertake - pursuant to s 36(2)(aa) of the Act, a detailed assessment of whether in the applicant's circumstances a failed asylum seeker and his illegal departure claim that he was of significant risk of harm if returned to Bangladesh.
The applicant noted that at paragraph 32 of its decision, the Authority found that the applicant could be subjected to a fine or imprisonment for departing Bangladesh illegally. However, the Authority noted that the source of this information was unaware of these penalties being enforced, and the information indicates that the law is not enforced to this regard. The applicant submitted that these findings are conflicting and not one and the same, and that neither dismisses the possibility that the applicant could be imprisoned for departing Bangladesh.
It was submitted that there was substantial grounds for believing that there was a necessary and foreseeable consequence of being removed from Australia to Bangladesh. There was a risk that the applicant would suffer significant harm and the Authority failed to grapple with that question. The Authority was required to consider what might happen to the applicant if he were to be imprisoned for departing Bangladesh illegally in light of Bangladesh's poor human rights record, in prison conditions and the peculiar circumstances that the applicant faced as a failed asylum seeker who departed Bangladesh illegally and does not have a passport.
The Authority noted prison conditions in Bangladesh were very poor with severe overcrowding. Presently they do not meet the minimum international standards for adequate light, air decency and privacy and do not have adequate toilets, and I was referred in this regard to a DFAT report at Case Book page 103, paragraph 31.
The applicant submits that the above excerpts heighten the need for the Authority to undertake the assessment in the complementary protection requirements. It was submitted that the illegal departure claim is neither subsumed within a claim of generality within the conclusion at paragraph 37 of the Authority's decision.
The First Respondent's submissions
The first respondent noted initially that, in their submission that no adequate reasons had been provided in relation to the late service of the applicant’s submissions and the amendment to the proposed grounds of appeal. No attempt was made to contact them or the Court of the proposed amendments and seek a variation in orders for the filing and service of documents. That aside, the proposed new grounds have no merit.
Ground one essentially contends there was no "conclusive evidence" to support the finding the applicant was a national of Bangladesh, and the Authority ought to have proceeded on that basis on the basis that he was stateless.
The fundamental difficulty with this contention arises from the evidence of the applicant himself that he gave to the Department. The applicant has consistently claimed since his arrival that he is a Bangladeshi national. Relevantly, the applicant indicated in his entry interview and SHEV application that he was born in Bangladesh and a Bangladeshi citizen at birth. These details are consistent with and supported by the applicant's identity documents that are contained in the Case Book at folios 58 to 60.
At no stage did the applicant claim that he was stateless or that he had a right to enter and reside in any other country, nor did he seek to provide any submission or further material to the Authority that he was anything other than a Bangladeshi national. Accordingly, no jurisdictional error can arise from the conclusion that the applicant was a Bangladeshi national.
In respect of the applicant's submissions, the Minister submits:
a)The fact that the applicant does not hold a Bangladeshi passport in no way suggests he was not a citizen of Bangladesh or that he was stateless.
b)The differences referred to by the applicant in the applicant's identity documents involved minor spelling variations across the applicant's aliases which the delegate attributed to either transliteration or translation issues noting that:
Relevant check and systems withheld no information that he had given a false identity.
These discrepancies have no bearing on the applicant's nationality.
c)The fact there is no photo ID evincing the applicant's nationality was no moment insofar as the applicant plainly does not suggest that he has provided any bogus identity documents to the department, or that the Authority had incorrectly accepted his claimed identity on the basis of those documents.
It was submitted that FER17 does not stand for the proposition that the applicant's nationality can only be determined if he or she is able to present "conclusive evidence" of such status. In FER17 the applicant was born in India to Sri Lankan parents and had never resided anywhere other than in India. In support of his application for a protection visa, the applicant provided in that case an Indian identity card which stated he was a Sri Lankan refugee. By reference to country information which indicated that children born outside Sri Lanka to Sri Lankan parents could be conferred Sri Lankan citizenship upon registration of the birth, the Authority concluded that the applicant was "entitled" to become a citizen and therefore proceeded wrongly on the basis that Sri Lanka was the receiving country. It was in this context that the Full Court referred to the concept of nationality as "a state that is actually and presently held by a person" and not one the person was entitled but had not then yet acquired. See FER17 at paragraphs [62] to [63] and [78]. No such question arises in the current matter.
In any event, where a citizen has no country of nationality, the "receiving country" is also defined in s 5 of the Act:
As a country of his or her former habitual residence regardless of whether it would be possible to return the non-citizen to the country.
In that respect, the evidence before the Authority indicated that the applicant had not lived anywhere other than Bangladesh prior to departing for Australia in 2012. A conclusion that the Bangladesh was the receiving country for the purpose of the review would have been inevitable even on the applicant's own submissions.
Ground 2 contends that the Authority failed to consider whether the applicant faced significant harm by reason of his illegal departure. There are broadly two aspects of this contention which emerge from the applicant's submissions:
a)first, the Authority's findings in respect that the applicant was an illegal departurer were made in respect of s 36(2)(a) and not
s 36(2)(aa) of the Act; andb)second, the Authority should have considered the risk of the applicant being imprisoned in Bangladesh insofar as it accepted that departing without a valid passport was an offence that may attract a penalty of up to one year imprisonment and/or a fine.
In relation to the first matter, where the dispositive findings in question were made in the course of Authority's refugee assessment, the weight of current Authority clearly establishes it is not required to repeat such findings under the rubric of the complementary protection criteria.
In relation to the second matter, there is nothing contradictory about the Authority's findings or reliance on country information which did not suggest that if repatriated the applicant risked being imprisoned, nor did the applicant at any point advance such a suggestion. Having found that the applicant was unlikely to come to the adverse attention of authorities on his return, it was therefore unnecessary for the Authority to consider "the possible fate of a failed asylum seeker who is imprisoned in Bangladesh", whether or not exposure to poor prison conditions constituted significant harm. In any event, such a submission could not be sustained in the Authority of the High Court's decision in SZTAL v Minister for Immigration and Border Protection [2017] 262 CLR 362 at paragraphs [6] to [8] and [29].
Consideration
It is well-established that a decision of the Authority should not be read with a too finer eye attuned to error. The function of the Authority is to respond to the case that the applicant advances; see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 197 ALR 389 at [405] per Kirby J. The onus of proof to prove that the applicant is a refugee rests with the applicant, see Abebe v Commonwealth [1999] 197 CLR 510 (“Abebe”) at [187].
Further, there is no general obligation on the Authority to investigate the applicant's claims; see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] 207 ALR 12 at [43] per Gummow and Hayne JJ.
In Abebe at [187] the following was said per Gummow and Hayne JJ:
“It is for the applicant to advance what evidence or arguments she wishes to advance in support a contention there it's a well-founded fear of persecution for a convention reason. The Tribunal must then decide whether the claim is made out.”
It is common ground that no claim was made before the Authority that the applicant was anything other than a citizen of Bangladesh. Indeed, all the documentary material indicated that he was. This material includes with the case book copies of his arrival interview questionnaire, his SHEV application, and subsequently produced by the applicant, birth certificates and a citizenship certificate; see case book at [58] to [59].
The Authority to my mind adequately and clearly dealt with the issues of spelling variations in the applicant's name. No claim was put forward that because he did not have a passport he would be unable to return to Bangladesh as the receiving country, or that he faced a real risk of harm of returning without a passport. The Authority specifically found at paragraphs 30 to 32 of its decision that Bangladesh accepts both voluntary and involuntary returnees.
In coming to this conclusion, the Authority made specific reference to country information that was available to it. It was satisfied on the basis of the country information that the applicant did not face a real chance of harm in Bangladesh on the basis of having departed illegally or being returned as a failed asylum seeker who had departed unlawfully.
To claim now before this Court when no claim was before the Authority that there was somehow an obligation on the Authority to conduct an inquiry contrary to the cases the Court has cited above to determine whether or not the applicant was a citizen of Bangladesh by reference to Bangladeshi laws is to the Court’s mind misconceived. There is a body of significant evidence before the Authority to indicate the applicant was indeed a citizen of Bangladesh, not that he was merely entitled to citizenship of Bangladesh. No claims were made that he would be unable to return to Bangladesh because he did not have a passport. The Authority was entitled to proceed in the way that it did. The findings were open to it on the evidence that was before it.
Further, support of this view is gained by the decision of Perry J in the matter of AZK18 v Minister for Immigration & Anor [2020] FCA 331 at paragraphs [41] to [45]. In that decision, Perry J found in similar circumstances that the matter FER17 had no particular application in circumstances such as this. To find, as is submitted by the applicant, that there is an absolute requirement to make a finding in these circumstances and to state so in the reasons that the applicant was a citizen of Bangladesh with respect to the laws solely by reference to the laws of Bangladesh to the Court’s mind would require an adherence to form rather than substance. There was clear undisputed information that the applicant was a citizen of Bangladesh. Ground1 discloses no jurisdictional error.
In relation to ground 2, the Authority considered country information, in particular, whether or not the applicant would face prosecution under the Bangladesh Emigration Ordinance Act for his illegal departure. The Authority found he did not face any real risk of serious harm. The Authority specifically stated at paragraph 32 of its decision, in relation to the issue of possible prosecution that:
However, information before me indicates that the law is not enforced in this regard.
The Authority specifically noted that Bangladesh accepts voluntary and involuntarily returnees. The Court is satisfied that these findings were open to it on an analysis of the country information before it.
The Authority considered whether the applicant would have a profile which might attract attention from authorities upon return with the consequence increased risk in harm. The Authority found that the applicant did not.
The fact that applicant disagrees with this finding is not indicative of jurisdictional error; rather it invites merits review. It is well-settled that the country information to which the Authority has regard in the way that it gives that information is a matter for the Authority, see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].
The Authority was entitled to make its complementary protection findings based on the previous refugee findings. This is entirely orthodox; see SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 614 at [31] per Marshall J. As it found there would no chance he would be prosecuted or imprisoned, no risk of harm from the conditions in Bangladeshi prisons arose for the Authority to consider ground 2 reveals no jurisdictional error.
Given that the amended grounds of appeal, in the Court’s view, have no merit, the Court determines that leave to rely upon them is refused.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 27 January 2021
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