BFW17 v Minister for Immigration
[2017] FCCA 2298
•20 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BFW17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2298 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 36, 424A, 473BB, 473CA, 473CB, 473DA, 473DB, 473DC |
| Applicant: | BFW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 863 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2017 |
REPRESENTATION
| The Applicant appeared in person by videolink. |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 863 of 2017
| BFW117 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 February 2017. The Authority affirmed a decision of a delegate of the Minister 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 set out in the Minister’s legal submissions filed on 20 July 2017.
The applicant is a national of Bangladesh who entered Australia as an unauthorised maritime arrival (as defined in s.5AA(1) of the Migration Act 1958 (Cth) (Migration Act) on 16 June 2013.[1]
[1] Court Book (CB) 156
On 28 June and 11 August 2013, the applicant participated in two interviews with officers in the Minister’s Department (Department).[2]
[2] CB 168-180, 188, 204 [7] (28 June 2013); 168-187 (11 August 2013)
In his first interview, the applicant claimed that there were “three cases [scil charges] against [him] by a person named Chand Mia”; that his younger brother had been in prison for three years; that there was fighting between Jamaat-e Islam and the Awami League; that he was “involved in the fighting” and was “with [Jamaat-e Islam]”; that he was a “member” of Jamaat-e Islam; that the principal reason for his having left Bangladesh was “[g]eneral persecution”; and that, if he were to return to Bangladesh he would be harmed at the hands of, and placed in prison by, the Awami League.[3] One of the charges alleged that the applicant murdered “Chand Mia’s nephew”.[4]
[3] CB 177
[4] CB 178; see also CB 188
In his second interview, the applicant gave evidence relating to the reasons for his brother’s imprisonment; that he had been charged with having been involved in an incident in which Chand Mia’s nephew had been beaten and injured but not killed—the inconsistency being attributed to “interpreter error”; that his father had been engaged with Jamaat-e Islam; that he was “involved with” Jamaat-e Islam by studying with them, participating in meetings and praying with them; and that the Awami League were looking for him in order to kill him.[5]
[5] CB 186
On 26 August 2016, the applicant applied for a protection visa known as a Safe Haven Enterprise Visa (SHEV).[6] He included with his application a statutory declaration made on 8 August 2016 in which he set out his claims for protection.[7] In summary, those claims were as follows:
[6] CB 23-71
[7] CB 66-69
a)his father was “involved in the Jamaat-e Islam party and the BNP, which is the Bangladesh National Party”;
b)he was a “supporter” of Jamaat-e Islam and the BNP;
c)the supporters of Chand Mia, who were aligned with the Awami League, “tortured [his] father and [his brother] and [him]”. The applicant was stabbed twice, “in the hand and in one foot”. When they left, they “took [his] brother away with them”, demanded a ransom of 400,000 Taka and said that, if payment was not made they would kill his brother. The ransom was paid and the applicant’s brother returned home;
d)a couple of months later, the same supporters of Chand Mia returned to the applicant’s family’s home looking for his father. A fracas ensued and the applicant’s brother was shot and killed;
e)later, the applicant’s father went to the local police station “to get help because Chand Mia’s people had come along after the beating and taken away everything that belonged to [his] family business, including all the money from the business.” The police were not helpful;
f)Chand Mia’s supporters threatened all members of the applicant’s family. As a consequence, the applicant left his home town to live in Dhaka, where he stayed until June 2013 before leaving for Australia;
g)in 2014, the applicant’s family’s home was destroyed by supporters of the Awami League. He has lost contact with his parents;
h)he cannot obtain State protection from supporters of the Awami League;
i)he cannot return to Bangladesh for fear of death at the hands of the Awami League. While his life would be spared if he were to support the Awami League, he will not do this. The Awami League “tortured [his] uncle and cousin before 2001” and both were killed despite being members;
j)he cannot relocate within Bangladesh “because [his] risk of harm extends throughout the whole country because the Awami League is in power and they control the country and they will find [him]”;
k)the applicant fears harm, “including murder”, at the hands of the Awami League on the basis of his “political opinions” and “the events surrounding the beating of … Chand Mia’s nephew”.
On 22 November 2016, the Department wrote to the applicant to invite him to attend an interview with the delegate on 24 November 2016.[8] The applicant did so.[9]
[8] CB 86-107
[9] CB 158
On 5 December 2016, the applicant’s then representative sent to the Department a written submission, a statutory declaration made by the representative, and a statement made by the applicant.[10] Significantly, this material disclosed a new claim for protection being advanced by the applicant, namely, that he had converted from Islam to Hinduism in March 2011 after falling in love with a Hindu woman in Bangladesh and feared harm at the hands of members of his family and militant Islamic groups and individuals (including Jamaat-e Islam). The delay in raising this claim was, according to the representative, attributed to the applicant “having very little time with his migration agent/lawyer to develop trust and confidence”, the “stress of a detention centre environment”; his “stressed emotional state”, his “subjective fear and desire to avoid speaking, thinking and dwelling on the events giving rise to that fear”, and “the short time frames to which he was subjected”.[11] As to the last-mentioned point, it should be noted that a period of approximately three years and one-and-a-half months elapsed between the time the applicant participated in his first departmental interview and made his statutory declaration in support of his visa application. The applicant himself, however, attributed the delay to “Mamun [a people smuggler] advis[ing] [him] not to tell anyone about [his] conversion to Hinduism”, lest he be killed “if anybody found out”.[12]
[10] CB 109-116
[11] CB 113 [14]-[15]
[12] CB 116 [11]
On 15 December 2016, the delegate made a decision to refuse to grant a SHEV to the applicant.[13] The delegate was not satisfied that the applicant genuinely feared persecution at the hands of Awami League supporters, that he and his father were involved with the Bangladeshi National Party or Jamaat-e Islam, and that the applicant had “contrived this claim in an attempt to enhance his claims to protection in Australia”.[14] Nor was the delegate satisfied that the applicant had converted to Hinduism.[15] In doing so, the delegate had regard to departmental and Serco records that suggested that the applicant continued to maintain that he was a practising Muslim, and continued to consume halal food, while in immigration detention since 2013.[16] The records are at CB 117-151.
[13] CB 156-166
[14] CB 159
[15] CB 160
[16] CB 160
Merits review
On 16 January 2017, the delegate’s decision, being a fast track reviewable decision as defined in s.473BB of the Migration Act, was referred by the Minister to the Authority pursuant to s.473CA.[17] The applicant was notified of the referral and provided copies of a fact sheet and the Practice Direction for Applicants, Representatives and Authorised Recipients issued by the President of the Administrative Appeals Tribunal.[18]
[17] CB 190
[18] CB 190
The applicant did not provide any further material to the Authority.
On 22 February 2017, the Authority affirmed the delegate’s decision.[19]
[19] CB 202-215
The Authority was not satisfied that the applicant, his father or his brother had been attacked by supporters of the Awami League; that his brother had been kidnapped and released after a ransom had been paid and subsequently killed; that the applicant had been stabbed by Awami League supporters; that the applicant’s father was a union president of Jamaat-e Islam (which had been advanced during the interview with the delegate); that his family had been targeted by Awami League supporters of Chand Mia; or that their business was attacked, their money stolen or their house burned down in 2014.[20] The Authority noted that the applicant had “modified his claims at every interview”, identified inconsistencies in his evidence and found the applicant not to be a credible witness. It did, however, accept that the applicant was a “supporter” of Jamaat-e Islam.[21]
[20] CB 206 [15]
[21] CB 206 [15]
The Authority was not satisfied that the applicant had converted to Hinduism in the light of the various departmental and Serco records that suggested that he continued to practise Islam while in immigration detention, consumed halal food and had regular telephone conversations with members of his family (including his father)[22] and the fact that the claim had been raised three years after his arrival in Australia.[23] The Authority was not satisfied that the applicant feared harm at the hands of his father, local village leaders, the Awami League or Jamaat-e Islam on the basis of his alleged conversion to Hinduism.[24]
[22] CB 206-207 [18]-[20]
[23] CB 207 [20]
[24] CB 207 [20]
The Authority found that the applicant had departed Bangladesh unlawfully without a valid passport.[25]
[25] CB 207 [21]
In the light of its factual findings, the Authority was not satisfied that the applicant feared persecution on the bases advanced by him.[26]
[26] CB 208 [24]
While the Authority accepted that the applicant supports Jamaat-e Islam, it also accepted that the applicant “does not like to be involved in politics”, as he himself said in his interview with the delegate.[27] The Authority was satisfied that the applicant would not be “politically active” on his return to Bangladesh “not because he fears harm from the Awami League but because he chooses not to be”. Having found that the applicant was not a member of Jamaat-e Islam, but merely a supporter, and observed that country information did not suggest that mere supporters were at risk of serious harm, the Authority found that the applicant was not at risk of serious harm on his return to Bangladesh on this basis.[28]
[27] CB 208 [25]
[28] CB 208 [25]
The Authority also was not satisfied that the applicant would face persecution for having left Bangladesh unlawfully and being perceived to be a failed asylum seeker.[29]
[29] CB 208 [26]-[27]
At [29]-[33],[30] the Authority considered the applicant’s claims for complementary protection and concluded that he could not meet the criterion in s.36(2)(aa) of the Migration Act. In doing so, the Authority relied upon its earlier, extensive findings of fact.[31]
[30] CB 209
[31] CB 209 [31]-[32]
The present proceedings
These proceedings began with a show cause application filed on 23 March 2017. There are three grounds in that application:
1. The Decision Maker ignored relevant material in a way that affects the exercise of power
2. The Decision Maker relied on irrelevant material in a way that affects the exercise of power
3. The Decision Maker made an incorrect interpretation and/or application to the facts of the applicable law in a way that affects the exercise of power
The applicant continues to rely upon that application. It is supported by a short affidavit filed with it which I received as a submission.
I have before me, as evidence, the court book filed on 3 May 2017.
An immediate difficulty with the application is that the grounds in it are extremely general and are devoid of any particulars. In the absence of particulars, the grounds cannot support an arguable case of jurisdictional error. I invited oral submissions from the applicant this afternoon. He said, first, that he had requested the sound recording of the interview conducted by the delegate, but he had not received it. Assuming that is correct, it is not apparent how that sound recording might impact upon the decision of the Authority which conducted no interview in accordance with its code of procedure. The Authority plainly had regard to the written decision of the delegate and the applicant had the opportunity to make submissions about that decision.
The applicant next referred to the certificate reproduced at CB 108. The applicant first said that, although he gave that document to the Minister’s Department, they denied receipt of it. I do not accept that that is the case. In any event, the Authority refers expressly to the document at [16] of its reasons.[32] The applicant maintained that he did, indeed, convert from Islam to Hinduism. That, however, is an argument over the merits of the Authority decision. It is clear from [20] of the Authority’s reasons[33] that the Authority took the certificate into account in rejecting the claim of conversion.
[32] CB 206
[33] CB 207
The applicant also took issue with the record of his claims made by the Department in relation to an alleged false case of murder against him. The applicant referred to the record of his arrival interview at CB 178 of the court book and the answer to question 38(b). The applicant is there recorded as saying that there was a charge against him that he had killed someone and that he was accused of killing his nephew. The applicant contends that that answer is not accurately recorded because, in fact, he denied that there was any killing. The applicant maintains the same point in relation to the case note appearing at CB 188. It seems to me, however, that the applicant’s denial of any killing is accurately reflected in that case note. Further, and in any event, the record of the applicant’s arrival interview at CB 186 under the final question contains an explicit clarification by the applicant of the false case issue. This could have left the delegate in no doubt about what the applicant was claiming. Likewise, the Authority deals accurately with the issue at [8] of its reasons[34]. There was, in my view, no misunderstanding of the applicant’s claims by the Authority or, for that matter, by the delegate.
[34] CB 204
The Minister’s submissions raise one other matter, which is the Authority’s reliance on Departmental and Serco records in dealing with the applicant’s claim of conversion. Were this decision made by the Administrative Appeals Tribunal, an issue would probably have arisen concerning the Tribunal’s compliance or lack of compliance with s.424A. As is pointed out in the Minister’s written submissions, however, the Authority operates under a different code of procedure. I agree with and adopt the Minister’s submissions concerning the result of the application of that different code.
The Authority relied upon various Departmental and Serco records at [18]-[19][35] in finding that the applicant continued to be a practising Muslim and had not converted to Hinduism. Those records were before the delegate at the time a decision was made on the applicant’s visa application (indeed, they were relied upon by the delegate) and comprised a part of the “review material” provided by the Secretary of the Department to the Authority pursuant to s.473CB(1). The Authority was required, therefore, to consider this material by reason of s.473DB(1) and was under no obligation to provide them to the applicant by reason of s.473DA(2) (the information not comprising “new information” as defined in s.473DC(1)). In the light of these provisions it is difficult to see how the Authority could have fallen into jurisdictional error by relying upon the information contained in the records without taking steps to put the applicant on notice of that information.
[35] CB 206-207
On one view, the non-disclosure by the Authority may not have been procedurally fair. If there was practical unfairness, however it was, nevertheless, mandated by the code of procedure under which the Authority operates.
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606, which was the amount prescribed in the Court scale at the time the application was filed. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 September 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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