Aor20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 852

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 852

File number(s):

SYG 286 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

28 April 2021

Catchwords:

MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant disbelieved in part and other claims found not to be well-founded – whether the Authority erred in considering the consequences of the applicant’s illegal departure from Bangladesh considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss 36, 473CA, 477

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Number of paragraphs:

27

Date of hearing:

28 April 2021

Place:

Sydney

The Applicant appeared in person

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Clayton Utz

ORDERS

SYG 286 of 2020

BETWEEN:

AOR20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	28 APRIL 2021

THE COURT ORDERS THAT:

1.The application filed on 10 February 2020 is dismissed.

2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

REASONS FOR JUDGMENT
(revised from transcript)

JUDGE DRIVER:

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 19 December 2019.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are conveniently set out in the Minister’s submissions, filed on 21 April 2021, which I adopt. 

2. The applicant is a citizen of Bangladesh who arrived in Australia on 2 May 2013 and on 15 June 2017 he made an application for a Safe Haven Enterprise Visa (SHEV).[1] The applicant’s claims to fear harm were set out in a statement accompanying his SHEV application, which the applicant described as a non-exhaustive summary of his claims.[2]  Broadly speaking, the applicant claimed to fear harm if returned to Bangladesh on the basis of his religion and political opinion.

   [1] Court Book (CB) 28

   [2] CB 69

3. Specifically, the applicant claimed to be a Sunni Muslim from a devout Muslim family. He also claimed that he was a supporter of Jamaat Islami, the largest political party in Bangladesh. He claimed that notwithstanding he had changed his practice of his religion since coming to Australia, for instance he prayed less frequently, the importance of his religion to him had not lessened. He claimed that the ruling party in Bangladesh, the Awami League, were opposed to and oppressive of those who supported Jamaat Islami. He claimed that Awami League people used to attack and shoot Jamaat Islami people. The applicant had observed police brutality against Jamaat Islami people at rallies he attended in 2013. The applicant claimed that in 2012 and 2013 he used to stick political posters on walls in his village. He claimed that if returned to Bangladesh he would be subjected to serious harm, including being beaten, being informed to the police, and being beaten by the police. He was also afraid of harm from the Awami League and activists. At his protection visa interview the applicant raised additional claims, that Awami League activists had tried to kill him in about 2011 or 2012, that activists and the police had been searching for him, and that about four months before the interview his brother was attacked and severely injured by the Awami League who were looking for the applicant.

4. On 4 November 2019 a delegate of the Minister refused to grant the applicant a SHEV.[3] The applicant’s matter was referred to the Authority for review of the delegate’s decision under s 473CA of the Migration Act 1958 (Cth) (Migration Act).

   [3] CB 115

5. On 28 November 2019 the applicant (through a direct services counsellor at the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors) sent the Authority an email attaching five photographs said to have been taken in May 2019 and depicting the applicant’s brother after having been attacked by assailants in Bangladesh.[4]

   [4] CB 135-143

6. On 19 December 2019 the Authority affirmed the decision under review.[5] The Authority accepted at [3] as new information the photographs purporting to be of the applicant’s brother. In relation to the applicant’s claims, the Authority identified at [12]-[19] concerns with the applicant’s claimed interest in, and involvement in, Jamaat Islami. The Authority found at [12] that the applicant’s explanation as to why he became interested in Jamaat Islami at a young age to have been unconvincing, and found there to be inconsistencies in his claims concerning how many rallies he had attended. The Authority noted at [13] that the applicant raised for the first time at the interview the fact that he had been threatened by the Awami League in the street.  It found at [14] his evidence about his support and preference for Jamaat Islami to be “generalised and unpersuasive”.  It found at [15] his evidence about Jamaat Islami as a political party to have been “shallow and generic”.  For instance, the applicant was “completely unaware” of the student wing of Jamaat Islami. It did not accept at [16] that a person in the applicant’s position would have been tasked with the activities he claimed to have undertaken for the party. It found at [18] other claims advanced by the applicant, including his claim of personal involvement in the Shapla Square incident, to be “completely implausible”.

   [5] CB 147

7. The Authority was also not convinced at [22] about the applicant’s claims concerning the applicant’s brother, and found (notwithstanding concerns expressed about the photographs submitted as new information) that it was implausible the brother would have been attacked as claimed by the applicant.

8. The Authority accepted at [25] the applicant had family members, including his father, who were supporters of Jamaat Islami. However, it did not accept that any of his family had joined the party as members, or were involved in any of the activist wings or auxiliary organisations, or participated in protests. The Authority did not accept that the applicant was, or would on return become, a supporter of Jamaat Islami or become politically engaged with the party.

9. The Authority was not satisfied at [26]-[27] that the applicant, in light of his lack of political status, would become caught up in the political violence that it accepted does exist in Bangladesh. It also rejected at [28]-[29] his claim to fear harm as a failed asylum seeker, or in connection with his having departed Bangladesh without a passport.

10. The Authority concluded that the applicant did not satisfy the criteria in either s 36(2) or s 36(2)(aa) of the Migration Act.

11. These proceedings began with a show cause application filed on 10 February 2020 on which the applicant continues to rely.  There is one particularised ground in that application:

    1.The Authority's finding that the applicant would not face a real risk of imprisonment for the offence of illegal departure was unreasonable.

    Particulars:

    i.   The DFAT country information was not definitive and not a probative basis for this finding.

    ii.   The Authority ought to have considered the "what if I am wrong test".

    iii.   The Authority did not consider the applicant's family profile as JI supporters in consideration of whether the applicant would face a real risk of imprisonment for this offence.

12. The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 6 April 2020. The application was filed outside the period prescribed in s 477(1) of the Migration Act. However, I granted an extension of time under s 477(2) on 1 June 2020. The matter thus came before me for a final hearing today.

13. Only the Minister filed prehearing written submissions in accordance with procedural orders made by a registrar. 

14. I invited oral submissions from the applicant.  He referred to problems that he fears he will encounter in Bangladesh, should he be required to return there.  He also referred to the Authority’s call for evidence to support his claims, which he was unable to provide.  Neither of those matters points to any jurisdictional error having been made by the Authority.  The applicant also referred to a problem which had arisen since the Authority decision.  Shortly after the Authority decision, the applicant’s mother, unfortunately, passed away.  There followed, it appears, conflict within his family caused by the applicant’s absence and a suspicion among his family that he had become wealthy in Australia.  The applicant told me that he had been pressured by his family to send money and his family did not accept his inability to do so.  That is beyond the scope of this proceeding.  It is, however, a matter which the Minister could consider if the Minister was so minded. 

15. The applicant was not able to advance the ground of review in his application.  The Minister’s submissions deal with that ground.  I agree with those submissions and adopt them. 

16. The ground does not identify jurisdictional error in the Authority’s decision. The challenge is limited to one paragraph of the Authority’s reasons, which is [29]. There, the Authority addressed itself to the evidence that the applicant had departed Bangladesh without a passport. Noting the applicant had not advanced any claim to fear harm in connection with the manner of his departure from the country, the Authority nevertheless considered whether the fact that the applicant had departed without a passport might result in a relevant risk of harm. The Authority in this respect referred to country information from the Department of Foreign Affairs and Trade (DFAT)[6] that reported that departing Bangladesh without a passport may amount to an offence under the Emigration Ordinance Act (1982) (Emigration Ordinance Act), which carried with it penalties of imprisonment or fine in certain circumstances, but that as at 2014 DFAT was not aware of any enforcement of those provisions, and there was no indication from more recent reports of a change to that position.

    [6] Department of Foreign Affairs and Trade

17. First, the applicant’s contention that the country information was not “definitive” and not a “probative basis” for the finding at [29] must be rejected. The contention is directly contrary to the Full Federal Court’s judgment in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[7] in which the Full Federal Court stated at [11] that:

    There can be no objection in principle to the Tribunal relying on ‘country information’, and that ‘the weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.

    [7] [2004] FCAFC 10

18. The Full Federal Court made clear that it is for the repository of power, and not for this Court, to select and weigh country information. This is not to say that the Authority’s reliance on, or findings reliant upon, country information (as an incident of its fact-finding) is immune from judicial review. However, in circumstances where, as here, the Authority has identified country information concerning the Emigration Ordinance Act, penalties for breaches of the Ordinance, and the question of the enforcement of the Ordinance, it cannot be said that the Authority’s reliance on this information amounted to jurisdictional error.

19. Secondly, the applicant’s contention that the Authority ought to have considered the “what if I am wrong test?” is misguided. The applicant appears to rely upon on what Sackville J stated in Minister for Immigration and Multicultural Affairs v Rajalingam.[8] That case has no application to the present. Justice Sackville expounded in that matter upon the decision-making task that confronts a repository of power under the Migration Act (as it then was) when determining whether a person has a well-founded fear of persecution. His Honour held that in certain cases, a decision-maker in properly attending to the statutory decision-making task must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur: [60]. His Honour went on at [61]-[64] to state that:

    The RRT performs its fact-finding task as an administrative decision-maker. Although the civil standard of proof is not irrelevant to the process, the RRT cannot simply apply that standard to all fact-finding. Moreover, the RRT must frequently make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator. As Gummow and Hayne JJ remarked in Ex parte Abebe (at par 191):

    "[i]t is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself."

    Even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity.

    In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

    Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.

    In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.

    [8] (1999) 93 FCR 220

20. His Honour’s analysis was derived from earlier authority of the High Court, in particular Minister for Immigration and Ethnic Affairs v Wu Shan Liang[9] and Minister for Immigration and Ethnic Affairs v Guo.[10]  In Guo at 567, in the majority judgment (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) their Honours stated:

    It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.

    [9] (1996) 185 CLR 259

    [10] (1997) 191 CLR 559

21. In the present case the Authority did not express any hesitancy or lack of assuredness in its findings of fact. As the portions of Guo and Rajalingam extracted above make clear, there was no requirement for the Authority to express in its reasons the degree of conviction or confidence its findings were correct. The Authority was not required to second-guess itself, or to give reasons in relation to alternative or hypothetical factual scenarios. It was not required, in this case, to ask itself “what if I am wrong?”. No error is made out.

22. In respect of the third contention, it is unclear in what respect the applicant’s claim that his family’s profile as supporters of Jamaat Islami was connected with a risk of harm he might have faced with respect to the enforcement of the Emigration Ordinance Act. In any event, the Authority addressed the claim at [25] that the applicant’s family members were supporters and it found that this support was nothing more than preference or passive support for the party. The applicant did not expressly claim that his family’s support of the party was a reason that he feared harm if returned to Bangladesh.

23. In all of the circumstances, the application fails to identify jurisdictional error in the Authority’s decision.

    CONLCUSION

24. I conclude that the applicant is unable to demonstrate that the decision of the authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision.

25. I will order that the application filed on 10 February 2020 is dismissed.

26. In consequence of the dismissal of the application, the Minister seeks an order for the costs in accordance with the Court scale.  The applicant claims impecuniosity and referred to outstanding court fees that he has not been able to pay.  I do not dispute that the applicant is probably already indebted in relation to these proceedings.  He may be unable to pay a further costs order.  However as I explained to him, impecuniosity is not a reason for the Court to refrain from making a costs order. 

27. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       30 April 2021