Aup20 v Minister for Immigration

[2020] FCCA 2588

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUP20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2588

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – whether the Authority erred in considering the applicant’s position as a returnee or otherwise considered – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: AUP20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 419 of 2020

Judgment of: Judge Driver

Hearing date: 15 September 2020

Delivered at: Sydney

Delivered on: 15 September 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Saunders of Minter Ellison

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application 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 $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 419 of 2020

AUP20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 30 January 2020.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed 1 September 2020, which I adopt.

2. The applicant is a male citizen of Bangladesh and arrived in Australia on 24 March 2013 as an unauthorised maritime arrival.[1] On 21 April 2017, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).[2] In summary, the applicant claimed he feared harmed from the Awami League on account of his support of the Bangladesh National Party (BNP), claiming that he had a false political case against him as a result of the Awami League disrupting a BNP meeting in December 2012.[3]

   [1] Court Book (CB) 81

   [2] CB 59-137

   [3] CB 99-102

3. On 19 November 2019, the delegate refused to grant the applicant the protection visa, having rejected the applicant's claims of past harm and finding there was not a real chance he would be subject to serious or significant harm on account of his political opinion and activities, and on account of being a failed asylum seeker.[4]

   [4] CB 252-269

4. The matter was subsequently referred to the Authority and on 2 January 2020, the applicant's representative provided submissions to the Authority in support of the applicant's case.[5]

   [5] CB 290-295

5. As noted above, on 30 January 2020, the Authority affirmed the decision under review.[6]

   [6] CB 303-317

Authority decision

1. The Authority noted that the referral bundle included emails and medical documents relating to the rescheduling of the applicant's protection visa interview and found that these documents were not relevant. The Authority accordingly disregarded these documents.[7] The Authority found the applicant's representative's submissions did not contain new information and therefore had regard to them.[8]

   [7] CB 304 at [3]

   [8] CB  304 at [4]

2. The Authority accepted the applicant was a member of the Betka Union Council of the BNP[9] but considered that his evidence in respect of his role in the BNP had evolved[10] and the documentary evidence provided in support of this aspect of his claim was not reliable, ultimately giving it no weight.[11] The Authority considered the applicant was not a truthful witness and was not satisfied the applicant held any position in the BNP, including assistant secretary or secretary.[12]

   [9] CB 305 at [10]

   [10] CB 306 at [12]–[13]

   [11] CB 306 at [14]

   [12] CB 307 at [15]

3. The Authority considered the applicant's evidence in respect of being targeted by the Awami League to be extremely vague and was not satisfied they were true.[13]  In relation to the event in December 2012, the Authority noted the applicant did not mention this in his biodata or arrival interview[14] and noted inconsistencies in the documents provided in support of this claim.[15]  When considering its concerns cumulatively with the country information before it, the Authority considered the documentary evidence to not be reliable and gave them no weight.[16]  In respect of the applicant's evidence at the interview about this event, the Authority considered it to be unconvincing and not that of a lived experience.[17]  Having regard to all of the evidence, the Authority was not satisfied at [26] that the applicant had been a truthful witness in relation to these aspects of his claims and that they were contrived. The Authority was not satisfied that the applicant was of interest to the Awami League or Bangladeshi authorities at the time of his departure.[18]

   [13] CB 307 at [17]–[18]

   [14] CB 307-308 at [20]–[21]

   [15] CB 308 at [22]

   [16] CB 309 at [23]–[24]

   [17] CB 309 at [25]

   [18] CB 309 at [27]

4. The Authority accepted the applicant participated in BNP meetings in Australia but was not satisfied he participated in or attended any anti-government rallies or demonstrations[19] and was not satisfied the applicant would face a real chance of harm on this basis.[20] The Authority rejected that the applicant's family's home had been searched and that his family had been harmed since his departure from Bangladesh.[21] The Authority was also not satisfied that the country information before it supported that the applicant's past or present circumstances would lead to a real chance of any adverse interest or consequences for him on his return nor would his political opinion.[22] The Authority found that the applicant left Bangladesh illegally and would be returning on a travel document after his asylum application has failed[23] but was not satisfied there was a real chance the applicant would be imprisoned, fined or suffer any other harm as a result.[24]

   [19] CB 310 at [29]–[30]

   [20] CB 310 at [32]

   [21] CB 311 at [35]–[36]

   [22] CB 311-312 at [39]–[41]

   [23] CB 312 at [42]

   [24] CB 312-313 at [45]–[46]

5. Turning to complementary protection, and noting that real chance involves the same standard as real risk, for the same reasons the Authority was not satisfied that the applicant would face a real risk of harm for the reasons claimed.[25]

   [25] CB 313 at [49]–[53]

The present proceedings

1. These proceedings began with a show cause application filed on 24 February 2020.  The applicant continues to rely upon that application.  There are two grounds in it:

   Ground one:

   The Authority fell into error by 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 jurisdictional error by failing to deal with an integer of the Applicant's claims leading to a failure to exercise jurisdiction.

2. I have before me as evidence the applicant’s affidavit accompanying his application and the court book lodged on 30 April 2020.  Only the Minister prepared pre-hearing written submissions in accordance with procedural orders I made on 19 March 2020.

3. I invited oral submissions from the application this morning.  He told me that he had explained everything concerning his claims, but he was not believed.  It is correct that the decision of the Authority turned on adverse credibility findings.  As I explained to the applicant, those findings were open to the Authority on the material before it.  In his submissions in reply, the applicant said that he could not return to Bangladesh, and that he needs protection.  I explained to the applicant the limited nature of this Court’s jurisdiction.

4. The Minister’s submissions deal adequately with the two grounds of review raised.  I agree with those submissions and adopt them. 

Ground one

1. Ground one alleges that the Authority erred in its findings that the applicant would be able to return to Bangladesh as an undocumented person. In circumstances where the applicant did not claim to be undocumented and, furthermore, where identity documents were provided by the applicant, this ground fails at a factual level.

2. To the extent the applicant's allegation is that the Authority erred in finding that the applicant would be able to return to Bangladesh in the absence of having a current passport, the country information relied on by the Authority (being the August 2019 DFAT[26] Country Report on Bangladesh) confirmed that the Bangladeshi authorities conducted identity verification before authorising returns and travel documents.[27] It was open to the Authority to rely on this information, which confirmed travel documents are issued, to find that the applicant would be able to return to Bangladesh in the absence of a current passport.

   [26] Department of Foreign Affairs and Trade

   [27] see [43]

Ground two

1. Ground two makes a broad allegation that the Authority failed to deal with an integer of the applicant's claims. In the absence of any particularisation, this ground is incapable of revealing any jurisdictional error by the Authority.

2. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. 

3. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant enquired about time for payment but did not oppose the making of a costs order.

5. 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 $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  17 September 2020