ARW18 v Minister for Home Affairs

[2018] FCCA 2117

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARW18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2117

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J

Applicant: ARW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 154 of 2018

Judgment of: Judge Vasta

Hearing date: 23 July 2018

Date of Last Submission: 23 July 2018

Delivered at: Brisbane

Delivered on: 23 July 2018

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the Application be dismissed.

2. That the Applicant pay costs fixed in the amount of seven thousand, three hundred and twenty-eight dollars ($7,328.00) to the First Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 154 of 2018

ARW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant is a citizen of Bangladesh who left Bangladesh at the end of 2012, arriving in Australia as an unauthorised maritime arrival on 21 February 2013.  At the time of assessment, he claimed that he was a national of Bangladesh, a Sunni Muslim and an ethnic Bengali who originates from Dhupadi in the Kaliganj Upazilla of Jhenaidah District of Bangladesh’s Khulna Division. 

2. The Applicant fears that, because he is a member and supporter of Jamaat-e-Islami, (“JI”), if he returns to Bangladesh he will be harmed by the Awami League Government because of his association with JI.

3. The Applicant also claims to fear harm from unknown men whom the Applicant suspects belong to the Bangladesh National Party (“the BNP”), who have threatened him and who have also threatened and attacked various members of his family. 

4. He also fears that Bangladesh Government officials at the airport would arrest him because they know of his Jamaat‑e‑Islami connections and that he refused to work for the government and that he left the country. 

5. He also said that he would be beaten to death or put in jail, and he claims also to fear harm from persons who robbed him of his wages when he was working in Dhaka. 

6. When the Applicant first arrived in Australia he was interviewed on 27 February 2013.  The records of that case assessment and biodata record the Applicant as saying that he departed Bangladesh because he was unemployed and because his younger brother was ill. 

7. On 3 March 2013, less than a week later, the Applicant participated in a departmental entry interview where there was a written and also an audio record.  He indicated that during 2006 he had spent seven months working in Malaysia as a bricklayer, but aside from this he lived his entire life in his village in Bangladesh where he had worked on a farm for a man named HR. 

8. He said that he married in 2003 and that his wife was not currently living at their home but was living with her father in a different village.  The Applicant said that his own father had died in 2006 from sickness.  The Applicant said he had five siblings, and when he was asked why he had left Bangladesh, he said that his youngest brother is sick and that they did not have any money for his treatment at home and that they also had family issues, economic issues and that he had come to Australia to work to get money for his brother’s treatment.

9. When asked what his brother’s illness was, the Applicant said that the brother had broken his left leg, and they could fix that in Bangladesh, but later he fell and suffered from back pain and that they had to send him to India for treatment.  He was asked what his brother had been specifically diagnosed with, and the Applicant said that the doctor advised there was something wrong with the leg bone, and he had to do more exercise.  He was asked about the specifics of the spinal problems, but he replied only that his brother had pain.

10. He was asked to explain his economic problems, and he said that there was no job, and he did not have any land or property.  It was put to him that he had indicated that he had been employed the entire time in Bangladesh, and he said that the money he earned in his job was insufficient, and he said he could not get another job because he was an illiterate person. 

11. He was asked if he was seeking Australia’s protection.  He said that he was.  He was asked to explain why, and he said that if he worked in Australia he would get more money. 

12. Asked if there were any other reasons why he departed Bangladesh he answered no. 

13. He was asked if any members of his family had been associated or involved with any political group or organisation, and he answered no. 

14. He was asked what he thought would happen to him if he returned to Bangladesh, and he said that he would die of hunger.  He was asked if there was anything that he had not said that he wished to say, and he said that he did not. 

15. About a month later he approached the departmental case managers wanting to provide new claims about his reasons for departing Bangladesh.

16. On 5 April 2013, a departmental case manager recorded that the Applicant had provided new protection claims.  The Applicant stated that before he came to Australia he was a mechanic, and he had fixed a sewing machine and also a motorbike for a Mr H and that some days after this two unknown persons approached him at home and said they wanted the motorbike.  He refused them the motorbike, and a scuffle developed.  People who witnessed the event told the applicant that the two unknown persons were terrorists.  Mr H then gave the Applicant money so that he could come to Australia.

17. On 8 May, so a month and three days later, a departmental case manager recorded that the Applicant had said that he was involved with the Communist Party and that he had been accused of committing a murder in a neighbouring village and that the victim’s brother worked for the Rapid Action Battalion Paramilitary Police Unit (“the RAB”) and that if he, the Applicant, returned to Bangladesh he would be killed as the RAB had been instructed to shoot him on sight. 

18. The records also show that the Applicant had advised that he would write-up this information in full and provide it to the case manager.

19. On 5 June 2013, a departmental case manager recorded that the Applicant had provided a statement in Bengali and, in an interview, had stated that he had come to Australia to save his life and that he had been an editor in the union and a leader of the BNP and that he used to organise meetings and strikes for the BNP.  One of his members had been killed, and two others had gone missing, and he was scared, and this is why he had come to Australia.  He said that he used to invite people from the Awami League Party to their meetings and that people from the Awami League had now threatened them and had shot at one of his colleagues.

20. He, the Applicant, was injured with a butcher’s knife during an attack, and when his father came to save his life, his father was attacked as well, and a cousin who was with the Awami League attacked the Applicant’s elder brother.  He said that his father died not long after and that the Awami League cousin had threatened to kill the Applicant, and the Applicant could not find a safe place to hide, so his family advised him to leave the country and that he would be killed if he returned to Bangladesh, and all of his family were now staying with his father‑in‑law.

21. Having then applied for a Safe Haven Enterprise Visa (“SHEV”) the Applicant both gave a written statement to the department and was actually interviewed.  The written statement comprised the matters that I have already spoken of.  At the interview the delegate provided the Applicant with a summary of the various statements he had made in 2013 as to why he had departed Bangladesh and why he could not return.  It was put to the Applicant that his reasons for having departed Bangladesh had proven significantly different over time and that this raised doubts about the credibility of his current claims.

22. In response, he stated that he had previously not been able to state everything out of fear.  He then stated that his son had been asked about his whereabouts and had been beaten and that they wanted money from him.  However, and although the Applicant now claims his son was assaulted in 2016, he had never indicated that there were any assaults upon his son during or prior to 2013, and it was not clear to the Immigration Assessment Authority (“the IAA”) as to why it was that he would be fearful of providing that information to officials in Australia.

23. The claims he then made to the delegate and that were assessed by the IAA were thoroughly assessed by the IAA.  The Applicant now claims that he was a very active supporter of JI.  He said that he supported JI with his whole family, that he was involved in procession and activities in his village.  He became a member in 1999 or 2000.  He says, as a Sunni Muslim, he likes to be engaged with the ideology.  He said that, because he was a member of JI, the BNP knew this, and they would ask him to assist as he would be against the Awami League.

24. It was noted, through country information, that the BNP had many of the tenets of Islam as part of its political ideology, whereas the Awami League believes in more of a secular state.  He gave a history of the conflict he had had, whilst working with JI, in regards to a number of clashes between the Awami League and the BNP. 

25. What the IAA had regard to was that the Applicant was asked to explain the membership structure of JI.  The country information was that there were, in effect, three different levels of JI membership. 

26. Whilst the Applicant was able to display some basic awareness of the political posture as an Islamist party of JI, it became evident that he did not have an appropriate knowledge of the membership structures.  It was also put to the Applicant that, in his application, he said that he joined JI in 1999 or 2000, and the delegate put to the Applicant that this meant that he would have been 12 or 13 years of age when he joined. He was asked to explained how he could have done this at such a young age, and he said that because there was a need to boost membership even young people can become members at such an age. 

27. This claim was treated as being very doubtful by the IAA.  The IAA went on to detail the country information which talked about the student front of JI, that is, Shibir, and that Shibir was its own organisation.  It was noted that the Applicant had given no indication that he had been a member of Shibir or that he was even aware of the student wing of JI. 

28. It was noted that in the written claims the Applicant said that he supported JI with his whole family, but at the SHEV interview the delegate asked the Applicant if his brothers and sisters were a member of any political party, and he said that they were not.

29. He was asked if his siblings had ever supported a political party, and he said that they had not.  He was asked if his deceased father had been a member or supporter of a party, and he said that his father had supported JI.  It was put to him the difference between his written claims and what he was saying in the interview, and the Applicant’s reply was that his whole family was Islamic. 

30. The delegate asked the Applicant if he had ever voted in a Bangladesh election, and he said that he had not.  He was asked why not, and he said that he was not allowed to because the other electoral parties did not allow JI supporters to vote.

31. The IAA looked at the country information and concluded that they had serious doubts about this, and, then, looking at all of what it was that the Applicant said about JI and the inconsistencies came to a conclusion at paragraph 17:

    “…I have serious doubts about his claim to be a supporter of Jamaat or any other political party in Bangladesh, or to have any interest in politics whatsoever”

    The IAA looked at another claim that the Applicant had made that in 2004 men with guns and their faces covered came to his home during the night. 

32. The men threatened him and his brother saying that the next day at the Eid festival they would be given instructions about what to do with a bomb, and if they did not do this the men would abduct the Applicant’s wife.  Out of fear for his wife, the Applicant said that he agreed to do this, and the men told him that they would come before sunrise with the bomb for him to throw the next day at prayer time.  The Applicant said that he fled with his family to his grandmother’s house located about six miles away. 

33. On the night of Eid his father and brother went to the village market, and they were badly beaten by men whom the Applicant believes belong to the Awami League.  The men came back to the Applicant’s house looking for the Applicant, and when they found he was gone they ransacked the house and took cattle.  He said that the family left the house after that incident as they were too scared to stay.  It was implied in the written claims that these men who assaulted the brother were the same men who had asked him to bomb the JI prayer meeting at Eid. 

34. However, at the SHEV interview he submitted that he suspected the men who came to his home with guns and their faces covered and who made these threats against him were actually members of the BNP, and also the men who beat his brother and broke his legs and hands were these same men, and the assault occurred at the home.  The delegate asked how he knew the men to be BNP, and the Applicant said that he guessed this because the problem was between the BNP and the Awami League.  It was put to the Applicant that he himself was claiming to be a member of JI.

35. The Applicant agreed that he was a JI member but offered no further explanation of why he believed that it was the BNP which had been pressuring him to bomb a JI organised prayer meeting even though the Applicant had been discussing how the BNP and JI had been working in coalition and in opposition to the Awami League.  The delegate asked the Applicant if he could explain why the BNP would have offered him a position as their organising secretary and have him organising processions while at the same time they would have been threatening him in this way. 

36. The Applicant said that the coalition of his organisation with the BNP, through JI, occurred several years later in 2010 and 2011.  The delegate put to the Applicant that in his written claims he had referred to an event of this kind occurring in 2004.  The Applicant did not contest this, and discussing his flight from the village, the Applicant dated the event as occurring in 2004.  He described himself as travelling alone and hiding with relatives before travelling on to Dhaka while his wife remained in the village.

37. The delegate put to him that in his written claims he had stated that his family fled with him.  The Applicant then said that his family came later.  The IAA were not convinced that if it were the BNP who were pressuring him to do this in 2004, why it is that he would still be working with them up to the time that he fled Bangladesh.  Paragraph 29 the IAA said:

    “It is plain that the applicant has provided significantly different reasons for having departed Bangladesh, although he has been consistent about some aspects of his history such as his place of origin and his religion and ethnicity and that his youngest brother has health problems. 

    At the SHEV interview the applicant appeared to refer, in attempting to explain his inconsistent evidence regarding his 2006 to 2012 place of employment, to his 5 April 2013 claim regarding the theft of a motorcycle.  Some aspects of the applicant’s current claims also resemble elements of the applicants 5 June 2013 claim to have been politically active with the BNP, but overall, the applicant’s evidence about his reasons for departing Bangladesh have proven significantly and irreconcilably inconsistent, and this raises serious doubt about the credibility of his current claim that his reasons for why he departed Bangladesh and why he is unable to return are associated with politics and political violence.”

38. The IAA talked about the Applicant’s fear that Bangladesh Government officials at the airport would arrest him because they knew of his JI connections and that he refused to work for the government and that he left the country.  The IAA did not accept that the Applicant actually has any JI connections or that he had provided evidence of ever having refused to work for the Bangladeshi Government, and any such claim would not have been accepted by the IAA.  The IAA looked at all of the DFAT information as to what would occur upon the Applicant being returned to Bangladesh.

39. The DFAT information looked at a country information report from the UK Home Office about what had occurred to failed asylum seekers being returned to Bangladesh and came to the conclusion that there really was no real risk of serious harm.  At paragraph 33 the IAA said:

    “33. Considering the circumstances of the applicant in their totality, other than the real chance of experiencing some economic difficulties in Bangladesh, which would not amount to serious harm, I am not satisfied the applicant would face a real chance of suffering harm of any kind for any reason from any actor if he were to return to Bangladesh.  I am, therefore, not satisfied the applicant would face a real chance of serious harm if he were to return to Bangladesh.”

40. The IAA then conducted a similar assessment of the complementary protection aspect and came to the conclusion that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, that there was a real risk that he would suffer significant harm. 

41. The IAA, it is quite clear, had placed a lot of emphasis on previous statements that had been made by the applicant and the inconsistencies thereof.  I should pause to note that after the delegate had made the decision and the Applicant had time to look at it and review it, that the Applicant made a statement to the IAA that did have new information.

42. One of those aspects was the Applicant was now claiming that there was inaccurate interpretation of his answers both at the interview when he first arrived in Australia and then at the SHEV interviews. The IAA listened to the audio recordings of these interviews and found that there were moments, as there generally is in any interview where an interpreter is employed, where the interpreter involved sought clarification from either the Applicant or the interviewing officer to ensure that the interpreting was accurate, and there was never any indication that either of the interpreters were problematic or that the Applicant found this to be the case.

43. The IAA noted that when it was that the matters were put to the Applicant by the delegate, he did not claim at that time that there was any problem with the interpretation.  The Applicant then, in this statement sent to the IAA, now claimed that he was a supporter of Shibir, the student wing of JI.  Such claim had never been made before, and the IAA found that this information could have and should have been given to the delegate.  Additionally, the Applicant gave more information about the claim that he had been asked with his brother to set off a bomb.

44. In the end, assessing all three submissions, which were properly categorised as new information, the IAA was of the view that the Applicant had not satisfied the test for new information.  The IAA was also not satisfied as to the credibility of this information and found that there was no exceptional circumstance to justify considering that new information, and it was not so considered.  That decision was made on 29 January 2018. 

1. On 16 February 2018, the Applicant filed in this Court seeking a review of the decision of the IAA.  On 4 April 2018 the Applicant appeared on a first court date before Registrar Belcher. 

2. On that day, the registrar ordered that the Applicant file and serve any amended application upon which he intended to rely, giving complete particulars of each ground of review, by 13 June.  The registrar also ordered that by 14 days prior to the hearing that the Applicant should file and serve written submissions in support of the application.  14 days prior to the hearing was 9 July and that the application would be adjourned to today for a final hearing, that is, 23 July 2018 at 10 am.  The Applicant did file an amended application on 1 June and also filed an outline of submissions on 1 June.

3. I note, though, in the submissions that were filed that the Applicant said this:

   “I am the applicant of above matter, and also I am not represented by lawyer.  My community friend help me to prepare the submission.  Unfortunately, he is not available now, and he will be available next month.  For legal representation at this stage I try to find out a free lawyer but failed.  I decided to find a lawyer with a legal fee within couple of months. 

   I’m requesting to the Honourable Justice adjourn today’s hearing.  After one month he will be able to appear before the Court.  The question will arise that why I did not engage a legal representative for today’s hearing.  It is not unusual as a poor litigant because of my financial hardship I did not engage a lawyer for today.”

4. Given that that was submitted on 1 June 2018 and today is 23 July 2018 there has been no explanation as to what has happened at all in the meantime or who this lawyer is or any other details.  The Applicant did turn up today and ask for an adjournment, but I am of the view that there was insufficient reason for such an adjournment.  There is, as was pointed out by the Minister, no right to legal representation in these matters.  The Applicant has had, certainly, since 4 April 2018 and, again, since 1 June 2018 to sort the matters out. 

5. He has not put any material before me as to who this lawyer is, what this person would be doing or saying or what the reason was for that person not to actually be here.  I do note that the submissions that were submitted to the Court were fairly full.  It is somewhat difficult to actually coalesce them, but I will do my best. 

6. The first ground is:

   In making decision the Immigration Assessment Authority acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   Particulars:

   IAA unreasonably raised doubt over my involvement with JAMAAT-E-ISLAMI Politics and my life is in danger. The Department and the IAA misunderstood or misconstrued the facts. Migration Advisor for handling my refugee claim as a political activist of JAMAAT-E-ISLAMI properly establish me a genuine refugee under the United Nation Convention & Protocol, I am the activities and role in the Party. I was an active and popular activist of JAMAAT-E-ISLAMI. DIBP and IAA did not believe my genuine claim without verification of my genuine document, it is the procedural mistake under the Migration Act 1958.

   My claims that there are many JAMAAT-E-ISLAMI leader worker and also low profile activists are persecuted like me. My all top leaders were hanged by the Government Authority without any judicial procedures. My party JAMAAT-E-ISLAMI is banned in politics.

   When Bangladesh Political situation for the JAMAAT-E-ISLAMI became worse, I decided to leave Bangladesh by boat with all of life risk.

   I argue that the Department asked many irrelevant questions to test the credibility of my evidences to support my claims.

   I argue that the Department asked many irrelevant questions to test the credibility of my evidence to support my claims. 

   The Department found inconsistency because the questions were asked in such a manner for which I was not prepared.  I was nervous and confused at the time of making Statutory Declaration and also at the time of interview with the Department and Lawyers who helped him to prepare the application. 

   The Department raised the question about telling these things now, and raised the question why I didn’t mention them earlier in the Statutory Declaration with the Original Application. 

   For the protection of my life I leave Bangladesh to Australia by boat and without passport. The IAA did not believe the substantial grounds there is a real risk if return to my country of origin Bangladesh. 

   The Department has accepted I was very confused.  I, myself was not understanding what answer I was giving for what question. 

   The Department told the applicant first understand then give answer.  I was totally nervous. 

   I believe I was denied procedural fairness when the hearing was conducted not freely and fairly. 

   I refer my Immigration Interview CD recording.

7. The problem with that ground is multiple.  The Applicant is giving an explanation as to why it was that he made certain statements that were the basis, it would seem, of the IAA’s conclusion that the Applicant was not a person of any great credibility.  Those reasons that the Applicant is now putting forward really go to the merits of the matter.  What information was before the IAA was sufficient for the IAA to make the conclusions that it did.  Those conclusions, being open on the evidence, therefore, do not display any jurisdictional error. 

8. The Applicant says that he was denied procedural fairness but gives no real detail as to what that was.  It is trite to say that the provisions of natural justice are not the common law provisions but are the provisions that are listed in the legislation.  There has been nothing shown to me as to why it is claimed that any one of those sections has not been complied with.  It seems to me that this ground is simply an application or an invitation to conduct an impermissible merits review, and so I do not find that there is any merit in that ground.

9. The next ground is:

   I claim that the IAA made a jurisdictional error when it made decision in which the finding of reasons is confused.  I argue that the IAA did not apply Real Risk Chance Test using the Refugee Convention under Australian law.

   My Particulars

   My claim that the IAA and the Department formed the opinion based on the limited information about the possible harm to me. The Authority ignored all other independent information about the attacks on me and the JAMAAT-E-ISLAMI activists. IAA made unreasonable doubt about my documents related with my claims.

   The Department and the IAA made opinion with the closed mind. My claim that I left Bangladesh because of attack and torture by the supports of the AWAMI LEAGUE. I have no protection from the local authorities because my attempts to get help failed and also the monopoly of AWAMI LEAGUE cadre and administrative authorities in Bangladesh.

   The IAA did not account any evidence of real chance of risk despite the facts of my situation in Bangladesh.

10. The IAA did go through what it needed to look at with regard to the Refugee Convention. At paragraph 10, the IAA talked of what was needed to be looked at, pursuant to s.5J of the Act.

11. At paragraphs 31 and 32 the IAA has looked at the real risk test and at paragraph 34 has concluded that the Applicant did not meet the requirements of refugee in s.5H(1).

12. The real gravamen of the complaint is really that the IAA did not accept his claims.  Having not accepted his claims that he had any true political affiliation, it would seem to me that the conclusion that there was no real risk of serious harm was able to be made very easily.  The only way in which there would be a real chance of risk would be if the IAA had accepted his claims of political activity which would come to the adverse attention of a vengeful political party such as the Awami League.

13. The IAA did not accept that premise.  Accordingly, it could never have looked at, with a positive result, the real risk chance test. 

14. The next ground is that:

    “The IAA made a jurisdictional error when it did not consider my claims under the Complementary Protection Clauses.

    Particulars:

    My claim I would satisfy the criterion for protection under Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return to Bangladesh. My claim that the IAA blindly follow the decision of the delegate. 

    The IAA did not consider that how I came to Australia by boat taking high risk of life.  The IAA ignored intentionally the relevant consideration related with complementary protection set out in s 36(2)(a).  I am subjected to significant harm as a consequences of being tried for kill with possibility that sever sentence would be carried out on me.

15. Again, what the IAA did at paragraphs 31 and 32 is to look at that aspect, and then at paragraph 37, when looking specifically at the complementary protection assessment, the IAA has again gone through its reasoning.  I do not accept that the IAA had failed to consider those claims, and I find that there is no merit in that ground either. 

16. The only other ground that seems to be in this application is:

    The IAA ignored real test of persecution and made decision with closed mind.

    Additional Contradictions DIBP Decision Contradictory without any reference or independent report “The Applicant has not explicitly claim he will face harm on return to Bangladesh for being a failed asylum seeker.” And finding without any evidence or any inquiry with independent report. Section S36(2)(a) of the act and findings without any query to refuse my genuine claim.

    DFAT is the Australian Embassy report but always refuse claim based on the report, but the refugee claim assessed by the International Independent Report the federal circuit court can consider that argument.

17. It is almost a claim of bias, and on my reading of the reasons any claim of bias just simply cannot be made out. 

18. I have had a look very carefully at the decision of the IAA.  It seems to me, on the evidence before the IAA, it was certainly open for the IAA to come to the conclusion that there was no true political affiliation that the Applicant had such that would cause there to be a real risk of serious harm if it were that he would return to Bangladesh; and that he would not be able to be adequately protected by the authorities in Bangladesh. 

19. Therefore, having come to that conclusion I find that there is no jurisdictional error, and I dismiss the application.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  16 October 2018