Azj20 v Minister for Immigration

[2020] FCCA 2241

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZJ20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2241

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa (SHEV) (Subclass 790) – Whether 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 – Whether the Authority fell into error by failing to deal with an integer of the applicant’s claims leading to a failure to exercise jurisdiction – Whether jurisdictional error is made out – No jurisdictional error is made out – The application is dismissed.

Legislation:

Migration Act 1958 (Cth), s. 36(2), 473CB

Cases cited:

Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707

Applicant: AZJ20

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 541 of 2020

Judgment of: Judge Humphreys

Hearing date: 13 August 2020

Date of Last Submission: 13 August 2020

Delivered at: Parramatta

Delivered on: 15 September 2020

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr Johnson

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 541 of 2020

AZJ20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(as corrected)

Introduction

1. The applicant is a citizen of Bangladesh. The applicant came to Australia in March 2013 as an unauthorised maritime arrival. On 13 April 2017, the applicant applied for a Safe Haven Enterprise (Subclass 790) visa (“SHEV”) or protection visa.

2. A delegate of the Minister for Immigration (“the delegate”) refused to grant the visa on 8 January 2020. The applicant sought merits review at the Immigration Assessment Authority (“the Authority”). In a decision dated 14 February 2020, the Authority affirmed the delegate’s decision, not to grant the applicant a protection visa.

3. The applicant now seeks judicial review of the Authority’s decision.

The Immigration Assessment Authority’s Decision

1. After setting out the background, at paragraph 3 of its decision, the Authority summarised the applicant’s claims as follows:

   ·He is Bangladeshi and his religion is Islam. He was born in a village in Jessore District, Khulna division in September 1988. He worked as a van driver in Bangladesh.

   ·His father has long been a supporter of the Bangladesh Nationalist Party (‘BNP’) and was a BNP leader in the village. His father was also a religious man. Many people from other political parties were opposed to him due to his role with the BNP.

   ·His uncle and cousin were also involved with the BNP. His uncle was president of the village council and helped organise rallies and members of the parliament to come to the village.

   ·He did not generally involve himself with political issues. He socialised with people in his village from all major political parties.

   ·He liked the BNP but his only involvement with the BNP was attending one BNP rally.

   ·Some of the Awami League (‘AL’) members in his village, whom he used to be friends with them when he young but they were no longer close, often put pressure on him to join the AL.

   ·When he was around 22 or 23, AL leaders in his village began to come to his house and tried to force him to join the AL and to attend rallies and meetings. They came to his house many times over a period of two and a half years, often with groups of 20 to 25 or more AL supporters.

   ·Because he was a very religious person, the AL accused him of being part of the Jamaat-e-Islami (‘JI’).

   ·On one occasion, the AL people set his van on fire and took all of his money.

   ·He was forced to attend AL’s meetings/ rallies, during which he was forced to hold weapons.

   ·The AL continued to pressure him to join the party and he continued to resist. His resistance met with death threat.

   ·If there were allegations of criminal activities in his village, the police would blame him for the crimes that he did not commit. On one occasion, he was falsely accused of stealing fish from one of the AL leaders.

   ·He went into hiding for a period and left Bangladesh for Australia in February 2013.

   ·The AL people continued to harass his family enquiring about him, sometimes every day or week while he was in India and after he left Bangladesh.

   ·The AL began to threaten his younger brother because he was not in Bangladesh. His brother was falsely accused of crimes that he did not commit and his family was demanded money to have the charges against his brother withdrawn.

   ·The AL leaders have brought the police to his home many times. On one occasion the police came with a big crowd of people with motorbikes and guns looking for his younger brother. On another occasion the police came to his family home in the night and destroyed the roof.

   ·His brother fled to India. His family is constantly at risk.

   ·He fears harm from the AL and the police because he refused to join the AL and because he was suspected of supporting enemies of the AL. He fears harm because of his religion as he is a very religious person and a Hafiz and is perceived to have affiliation with JL.

   ·He is afraid that if he were to return to Bangladesh from Australia as a failed asylum seeker he would come to the attention of the authorities at the airport and the AL leaders would find out about his return.

2. At paragraph 6 of its decision, the Authority accepts that the applicant is a citizen of Bangladesh and of Muslim faith.

3. At paragraph 9 of its decision, the Authority notes that the applicant stated in his entry interview that he faced political problems in Bangladesh. Further claims were provided at the SHEV interview by the applicant. The Authority found that the applicant’s evidence was problematic, in that he had provided differing and conflicting accounts with regard to many aspects of his claims. Further, the Authority considered some of his claims were not plausible.

4. At paragraphs 12 to 13 of its decision, the Authority notes that the applicant claims he went to a small Bangladesh Nationalist Party (“BNP”) protest. There is some doubt as to whether the protest took place on 3 January 2013 or 13 January 2013. The applicant denied that he was forced to carry a gun or small bomb, as he stated in his visa application, but reiterated that other people did so. The applicant left from behind, while the protest was ongoing.

5. At paragraph 14 of its decision, the Authority noted some discrepancies as to whether the applicant told Australian authorities that the Awami League (“AL’”) set fire to his van, or simply threatened to set fire to the van.

6. At paragraph 15 of its decision, the Authority notes that there are considerable discrepancies in the dates recounted by the applicant, as to when he went to the rally, as compared to the dates he states he went into hiding due to threats by the AL. The Authority was not convinced that the applicant’s account was plausible that the leaders of his village threatened to kill the applicant, if he did not join the AL.

7. At paragraph 18 of its decision, the Authority notes that the applicant’s alleged treatment from the AL is not supported by independent country information. An August 2019 Department of Foreign Affairs and Trade (“DFAT”) report, indicates that it is not in possession of evidence of forced recruitment to political parties and considers it unlikely to occur, as parties hold membership campaigns each year through which they recruit large numbers of members.

8. At paragraph 19 of its decision, the Authority notes differing accounts given by the applicant at his entry interview, his SHEV interview and his visa application, as to the extent of his father’s involvement with the BNP.

9. At paragraph 20 of its decision, the Authority noted that the applicant stated he was telling the delegate at the SHEV interview, the situation at the relevant time and that he was experiencing considerable metal stress and pressure.

10. At paragraph 21 of its decision, the Authority took these matters into account and noted that the entry interview and SHEV interview had different purposes. The Authority also noted that the entry interview took place some four weeks after the applicant’s arrival in Australia and as such, he would have had some time to recover from the sea voyage.

11. At paragraphs 26 and 27 of its decision, the Authority concludes that the applicant is not a witness of truth and has fabricated his story, and it is for this reason, that he has not been able to provide a consistent and convincing account of the issues he faced in Bangladesh. The Authority was not satisfied as to the applicant’s claims about his involvement with AL supporters or, that he had experienced problems with the AL, the police, or anyone else before he left Bangladesh.

12. At paragraphs 30 to 32 of its decision, the Authority was not satisfied that the applicant’s brother or any other family members, ever came to the adverse interest of members of the AL party, the police or authorities. The Authority was not satisfied that the police or AL people destroyed the roof of the applicant’s house.

13. At paragraph 33 of its decision, the Authority notes that there is no suggestion that the applicant has been involved in any political activity since he left Bangladesh. The Authority was not satisfied that the applicant has a profile, such to be of adverse interest to the AL, the police or anyone, if he were to return to Bangladesh.

14. At paragraphs 34-35 of its decision, the Authority considered the chance that the applicant would be the subject of politically motivated violence if he were to return to Bangladesh, was remote. The Authority noted, that the chance of facing adverse attention as a result of being returned as a failed asylum seeker was unlikely. Accordingly, the Authority was not satisfied the applicant met the requirements under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

15. For similar reasons, at paragraphs 40-55 of its decision, the Authority was not satisfied the applicant met the requirements for protection under the Complimentary Protection criteria, under s 36(2)(aa) of the Act. Accordingly, the Authority affirmed the delegate’s decision to refuse the applicant a protection visa.

Grounds of Judicial Review

1. The application filed with the Court contains two grounds of judicial review. They are as follows:

   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 error by failing to deal with an integer of the applicant’s claims leading to a failure to exercise jurisdiction.

2. No particulars were provided in relation to each of the above grounds.

The Applicant’s Submissions

1. Despite Court orders, no written submissions, in support of the application, were filed with the Court. Due to health restrictions, the hearing was conducted via telephone. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant had in his possession, a copy of the relevant Court book, as well as the first respondent’s written submissions. These were interpreted to the applicant prior to the commencement of the hearing.

2. After carefully explaining the process the Court would follow to conduct the hearing, the applicant was invited to make oral submissions. The applicant told the Court that he would have great problems if he were forced to return to his home country. The applicant had nothing further to add to his grounds of judicial review.

3. Following the first respondent’s oral submissions, the applicant was again invited to say anything he wished to in response. The applicant stated that he had nothing further to say, other than repeating his concerns if he were to return to Bangladesh.

The First Respondent’s Submissions

1. In relation to ground one, the first respondent notes that the applicant does not identify what factual assumptions and conclusions the Authority made, that were unsupported by way of evidence. The first respondent relies upon Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 per Weinberg J at [575], in that a ‘no evidence’ ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”. It was submitted on behalf of the first respondent that, in the present case, the Authority gave reasons for its conclusions concerning the applicant’s factual claims and it referred expressly to the evidence upon which its conclusions were based. The Authority made adverse credit findings based on the applicant’s evidence in his entry interview and his later claim for protection in his SHEV interview. The Authority’s conclusions and inferences were supported by the evidence identified and the evaluation of that evidence, was open to it, even if the Court might not have come to the same conclusions.

2. If the first ground, is that the Authority failed to articulate the circumstances under which an undocumented person can be returned to Bangladesh, this was not a matter that the Authority was required to consider in conducting a review. The Authority directed itself properly as to whether the applicant met the requirements of s 36(2)(a) and

   
   

   s 36(2)(aa) of the Act. In any event, the Authority did consider the applicant’s status, as a person who would return to Bangladesh having departed illegally at paragraph 35 of its decision. The Authority noted an absence of information to suggest that authorities in Bangladesh enforced the Emigration Ordinance Act (1982), against returning Bangladeshi asylum seekers.

3. In relation to the second ground, the applicant asserts that the Authority erred in failing to deal with an integer of the applicant’s claims. The applicant does not particularise what claim, or part of a claim, the Authority failed to consider. Counsel for the first respondent notes that the Authority was in possession of the review material provided to it, under s 473CB of the Act, including the applicant’s protection visa application, statement of claims and the delegate’s decision record. The Authority made extensive adverse findings concerning the applicant’s claims. The Authority assessed the applicant not to be a witness of credit and found important aspects of his claims to be implausible or inconsistently presented over time. These factual findings, were open to the Authority and do not reveal any jurisdictional error.

4. Counsel for the first respondent gave a careful summary of the Authority’s decision and reasoning process in his oral submissions, to assist both the Court, more particularly the applicant, to understand the basis for the Authority’s conclusions and as a result, why the application must fail.

Consideration

1. Given the lack of particulars in relation to each ground, it is difficult to assess precisely what the applicant’s complaints are. The grounds appear to be simply generic and not specific to the applicant’s particular circumstances. The matters, such as they were, put in oral submissions by the applicant, only went to the merits of the Authority’s decision and simply invited the Court to undertake impermissible merits review.

2. In relation to ground one, the Court is satisfied that the Authority considered all the claims of the applicant. The conclusions reached were open to the Authority based on the evidence it had before it. There is nothing legally unreasonable, illogical or irrational in the conclusions reached.

3. The Court is satisfied that the Authority did consider relevant country information in regards to the position of failed asylum seekers being returned to Bangladesh at paragraph 35 of its decision and was satisfied that there was no material that indicated that the applicant would be at risk of harm. Further, the Authority specifically found that the applicant did not have an adverse profile with Bangladesh authorities. In the absence of some particular contention that a specific conclusion was not supported by evidence, this ground must fail.

4. In relation to ground two of appeal, again there is no particular that a specific integer was not considered. The Authority went into some detail to list the applicant’s claims at the beginning of its reasons and then went on to discuss them at some length. The Court is satisfied that the Authority dealt with each claim but found against the applicant. As pointed out by the first respondent, the Authority made a number of specific adverse findings against the applicant in terms of his claims and found him not to be a witness of truth. The Court is satisfied that this conclusion was open to the Authority and was not subject to legal unreasonableness, illogicality or irrationality No jurisdictional error is apparent.

5. As the applicant is unrepresented, the Court has reviewed the Authority’s decision and can find no jurisdictional error that has not been articulated by the applicant.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 15 September 2020

CORRECTION NOTE (16 February 2021)

ADMINISTRATIVE APPEALS TRIBUNAL changed to IMMIGRATION ASSESSMENT AUTHORITY on Cover page and Party details on page 1.