Asa17 v Minister for Immigration

[2018] FCCA 2432

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASA17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2432

Catchwords:
MIGRATION – Application for SHEV – Criteria not met – Application for review dismissed.

Legislation:

Migration Act 1958 (Cth), pt. 7AA, ss.5H(1), 36(2)(a), 36(2)(aa), 473CB

Cases cited:

WZATH v Minister of Immigration and Border Protection [2014] FCCA 612

WZATH v Minister of Immigration and Border Protection [2014] FCA 969

Applicant: ASA17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 141 of 2017

Judgment of: Judge Egan

Hearing date: 24 August 2018

Date of Last Submission: 24 August 2018

Delivered at: Brisbane

Delivered on: 24 August 2018

REPRESENTATION

Applicant: Self-represented

Solicitors for the First Respondent:	Sparke Helmore Lawyers
Second Respondent	Submitting appearance

IT IS ORDERED ON A FINAL BASIS THAT:

1. That the Application filed on 20 February 2017 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the amount of five thousand dollars ($5,000.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 141 of 2017

ASA17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived on Christmas Island as an unauthorised maritime arrival on 21 February 2013.  On 1 April 2016, the Department advised the applicant that the Minister had lifted the section 46A bar, and the applicant was invited to apply for a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Class XE) (Subclass 790) visa SHEV).  The applicant attended an interview with a Delegate of the Minister on 7 December 2016.  Subsequently, the Delegate refused to grant to the applicant the SHEV.

2. On 19 December 2016, the matter was referred to the Immigration Assessment Authority (“IAA”) for review under Part 7AA of the Migration Act 1958 (Cth) (“the Act”).  On 31 January 2017, the IAA wrote to the applicant, attaching its reasons for affirming the Delegate’s decision not to grant to the applicant the SHEV.  At the same time, the IAA sent to the applicant its reasons for failing to grant the visa.

3. In its reasons at [5], the IAA confirmed that the applicant’s claims for protection fell under a number of different categories, and it noted as follows:

   The applicant was a national of Bangladesh, who was born and lived in Kumjasreepur village, in the Comilla district.

   The applicant’s father was a supporter of the BNP (Bangladesh National Party), and the applicant became a member in approximately 2002/2003.

   The applicant asserted that he held a key position in the BNP in his area as a youth party leader, and that he was the president of a group of approximately 20 members, who were tasked to encourage others to join the party at community activities such as at weddings or meetings.

   In July 2009, the applicant fled to Malaysia, after a rival political party (AL) came into power.  The applicant asserted that, because of his role as president of a youth group, presumably a BNP youth group, the AL members were demanding money from him and threatening him if he did not become an AL member.

   The applicant alleged that he experienced problems in Malaysia because of his illegal status.  He asserted that AL members had become aware of his presence, and that they had demanded money and threatened to report him to the authorities if he did not pay.

   Upon his return to Bangladesh in 2012, the applicant asserted that, because it was assumed that he had a lot of money, possibly to be used for BNP purposes, that AL members and supporters had demanded money from him.

   The applicant alleged that approximately 10 AL supporters attacked him while in a coffee shop in his village after he refused to listen to them, give them money, or join their party.  He alleged that he was beaten up by the use of fists and hockey sticks.  The applicant asserts that, whilst lying on the ground, he was saved by a number of people from his village, and that a village doctor attended him at his house and encouraged him to leave the area, lest he be killed.

   The applicant asserted that he could not go to another area in Bangladesh, as word would spread that he had been a leader of the BNP youth party.  He asserted that he remained in hiding until his uncle introduced him to a people smuggler.

   The applicant asserted that he had departed Bangladesh illegally by boat.

   The applicant asserted that he fears harm from AL because of his unwillingness to change his membership or support from the BNP.  The applicant asserted that the AL was corrupt, and that they wanted to get rid of BNP members so as to further secure their power.

4. When considering the material which had been placed before it, the IAA had regard to such information pursuant to section 473CB of the Act. It confirmed that no further information had been received or obtained. Relevantly, the IAA made findings as follows:

   a)The applicant was president of a BNP youth group in his village from about 2003 until about 2006, but the IAA did not accept that the applicant was president of such group between 2006 and 2008, namely during the period of the caretaker government.  It also found that it was not satisfied that after the AL came into power in 2009, the applicant was as politically active as when the BNP was in power.

   b)The IAA was not satisfied that the applicant had been harassed or threatened in Malaysia by AL members or those associated with the AL.

   c)The IAA was not satisfied that the applicant would retain a profile as a village president for the BNP youth party some ten (10) years after the time when he was last associated with the BNP, in a leadership role.  The IAA found that the applicant did not claim to be politically active upon his return to Bangladesh from Malaysia in 2012; nor was there any evidence that he would reclaim any position with the BNP in the future.

5. At paragraph [29] of its reasons, the IAA found that the applicant would not be perceived as a high-profile BNP political figure if returned to Bangladesh.  In reliance upon country information, the IAA did not accept that the applicant would have a real chance of serious harm on his return to Bangladesh.  It recorded that, though DFAT assessed that AL, BNP and Jamaat members were subjected to a low level of inter-party violence, it noted that, despite the increase in inter-party violence since 2013, the number of casualties remained relatively low in proportion to the size of the parties.  It found that there was a low risk of intra-party violence, and was not satisfied that there was a real chance that the applicant would suffer serious harm in that respect.

6. The IAA found that the claimed attack of the applicant in the coffee shop by AL supporters was not credible.  It was recorded by the IAA that, at entry interview, the officer asked him whether he was physically assaulted during the alleged coffee shop attack.  The applicant said that he was not physically assaulted.  But in his statement of claims, the incident was described differently, in that the applicant claimed that, on his return from Malaysia, he was attacked at his coffee shop by approximately 10 members of AL.  The attack was said to be with fists and a hockey stick.  At his PV interview, the applicant described the incident as having occurred at a tea stall in his village.

7. At paragraph [23] of its reasons, the Authority found that it was not satisfied that the incident, as alleged by the applicant as having occurred in the coffee shop, had in fact occurred.  The Authority found that the applicant had fabricated his claim, comparing conflicting stories told by the applicant at various stages after his arrival.  It was also found that, given that the applicant had claimed that he had been attacked with a hockey stick by some ten (10) people, it was implausible that, on the applicant’s account, he had received no cuts or bruises.

8. Though the IAA was willing to accept that the applicant may have been subjected to demands of money after his return from Malaysia, the IAA found that it was because of the perception that he had money that he might have been the subject of such demands, rather than his affiliation with the BNP.  It did not consider that the applicant would suffer serious harm if returned to Bangladesh in such an environment.

9. The IAA further did not accept that the applicant went into hiding prior to his departure from Bangladesh.  It was recorded that the applicant had provided three different accounts of who advised him to go into hiding.  It was also recorded that the applicant had given different accounts at different times after his arrival on Christmas Island as to his allegedly having moved from place to place, in hiding, between July 2012 and January 2013.

10. It was accepted that the applicant departed Bangladesh illegally, without a valid passport, and that if he was returned, he might be perceived as a failed asylum seeker. However, at paragraphs [31]–[32] of the IAA reasons. The IAA accepted that, based upon DFAT country information, most returning failed asylum seekers were not subjected to adverse attention, regardless of whether they had returned voluntarily or involuntarily. It was recorded by the IAA that the applicant did not meet the section 36(2)(a) criteria or that the applicant met the requirements of the definition of a refugee in section 5H(1) of the Act.

11. Further, the IAA considered the complementary protection criteria and found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Bangladesh, there was a real risk that the applicant would suffer significant harm. It found that the applicant did not meet the criteria as set out in section 36(2)(aa) of the Act. It also found that there was no real risk that the applicant would suffer significant harm upon his return to Bangladesh based upon the claims made by him so as to satisfy the requirements under section 36(2A) of the Act.

12. The applicant has asserted as his only ground for review that the Immigration Assessment Authority erred in law in making its decision.  The application is liable to be dismissed on that basis alone (see WZATH v Minister of Immigration and Border Protection [2014] FCCA 612 at [60] as upheld in WZATH v Minister of Immigration and Border Protection [2014] FCA 969).

13. The Court is of the view that the IAA did not overlook or misunderstand any of the applicant’s claims. It fairly dealt with the material before it and did not fail to consider any material evidence. It did not ask itself an inappropriate question or apply an incorrect test when undertaking its statutory duty. No new information was sought to be submitted by the applicant and the IAA conducted its review under Part 7AA of the Act properly. In all of the circumstances, no jurisdictional error has been demonstrated. The applicant for review is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 20 September 2018