BGQ18 v Minister for Home Affairs

[2018] FCCA 3605

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3605

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)

Applicant: BGQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 252 of 2018

Judgment of: Judge Vasta

Hearing date: 9 November 2018

Date of Last Submission: 9 November 2018

Delivered at: Brisbane

Delivered on: 9 November 2018

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an interpreter.

Solicitors for the First Respondent: MINTER ELLISON

ORDERS

1. That the Application filed 15 March 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,700.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 252 of 2018

BGQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant, BGQ18, is a citizen of Bangladesh.  He arrived in Australia in 19 August 2013, having arrived by boat.  He has made an application for a Safe Haven Enterprise Visa.  The application for the SHEV was made on 30 March 2017.  On 21 June 2017, a delegate of the Minister refused to grant the visa.  Because it was a fast-track reviewable decision, the matter was referred to the Immigration Assessment Authority (“the IAA”) for review. 

2. The Applicant did not provide any further information to Immigration Assessment Authority.  On 28 February 2018, the Immigration Assessment Authority made its decision to affirm the decision not to grant the Applicant a visa.  The Immigration Assessment Authority looked at the claims.  They said that these claims could be summarised as follows: 

   a)that the Applicant is a national of Bangladesh, a Sunni Muslim and an ethnic Bengali  who originates from a village in Sultanpur Union and in the Brahmanbaria district in Bangladesh’s Chittagong Division; 

   b)he departed Bangladesh because he was constantly being pressured by both the Awami League and thee Bangladesh National Party, the BNP, to join their respective parties;  and

   c)he fears that if he returns to Bangladesh, he will suffer harm from and be possibly killed by either the BNP or the Awami League because he has refused to join them. 

3. These claims were assessed very thoroughly by the IAA.  The IAA looked at quite a deal of country information to go through the conflict that had arisen in Bangladesh for many years between the two major political parties, that being the Awami League and the BNP. 

4. The IAA noted that there were some “passionate devotees of both parties”, however, the interest in politics for mainstream Bangladeshis was waning.  The IAA noted the reports of violence by both groups which does seem too break out at times of unrest, including times of upcoming elections. 

5. The Applicant claimed that he had been working in his village as a tailor for quite some time.  He opened his tailoring shop in 2009.  He said then that his uncle, that is the husband of his mother’s sister, was a high-ranking member or local president of the BNP.  He said that his uncle regularly visited his tailoring shop and while in the shop, the uncle would speak about politics with his friends. 

6. The Applicant said that this was not an unusual thing in Bangladesh that people do seem to just go, frequent shops and talk politics as such.  The Applicant said that after this had been going on for, it would seem, at least three years, persons from the Awami League came to his shop.  They got angry and said to him, “you’re not joining anyone, but you’re supporting the BNP”.  That seemed to be a reference to the fact that the Applicant had not joined the Awami League but somehow because he allowed his uncle to come to his shop that he was therefore supporting the BNP. 

7. He said that, in August 2012, the Awami League ransacked his shop and beat him.  He said that there was a big gang of about 15 or 20 people with sticks and two had pistols and stood guard outside.  He said following this, he was taken to a doctor and he was treated for his injuries.  He said he went to the local police to lodge a case against the Awami League but the police refused to take the case and said that if he, the Applicant, lodged accounts against the Awami League, that the Awami League would kill him. 

8. He said the police then threatened him and when they asked the Applicant again if he wanted to lodge a case, he then replied that he did not.  He said that from then after, the Awami League would threaten him whenever he was walking around the village and would keep asking him to join them and said that he had to take part in certain activities with them like fighting or threatening others.  He said that many times the Awami League then came to his home and threatened him and, if they could not find him, they would threaten his family members. 

9. He said this was happening once to three times a week.  He said the BNP then also asked the Applicant to join them.  They said to him that if he did join them, that they would take revenge on the Awami League. 

10. The Applicant said to escape all of this, he moved to Chittagong in the south and then Sylhet in the north.  He said both places were a long way from his own village in Brahmanbaria but the Awami League located him within one week of moving and he said that there was nowhere in Bangladesh that he could go where he could be safe because he would be located. So he went into hiding for four months and then departed and came to Australia. 

11. The IAA assessed those claims and went through everything that he had said and also looked at the country information.  The IAA ended up not accepting this story. 

12. The IAA came to the conclusion that they weren't satisfied that this was a true account.  They did not find aspects of his evidence convincing.  They accepted that the Applicant had no interest in politics but found it doubtful that he could have remained unaware of the specifics of his uncle’s political position if his uncle was spending every second or third afternoon discussing politics with other BNP members at his tailoring shop which was really just a one-room shop. 

13. The IAA were not satisfied that if this were happening, that the Awami League would have waited three years before they made any enquiry as to why he was doing this. But then to allow it to have occurred for over three years and then to come down with such a violent response was not something that the IAA found particularly credible. 

14. The Applicant responded to this observation when he was being interviewed by then saying that his uncle was not there regularly but only once in a while and that the uncle only came when he felt like it and that the Awami League only found out about this later on and it was something they became aware of gradually. 

15. The delegate had put to the Applicant if this was so, then the fact of the uncle being the local president would have been known to everyone. If the local president of the BNP was using the Applicant’s store in the village marketplace to hold political discussions, it did not seem plausible that the Awami League could have remained unaware of this until August 2012. 

16. It was then that the Applicant responded again that he did not ask his uncle about the position with the BNP and that when his uncle felt like it, he visited it.  Having found that it was implausible that the Awami League supporters could have remained unaware of this, the central tenet of the Applicant’s account was found not to be convincing and this really infected the whole story. 

17. Added to this, there was no country information that corroborated that either the BNP or the Awami League were ever forcing people at this time to join their respective parties. 

18. The IAA then looked at whether the Applicant had any risk of returning because he was a failed asylum seeker.  Even though this was not a claim that the Applicant had made, it was still thoroughly assessed by the IAA and the IAA came to the conclusion that they were not satisfied that the Applicant would face a real chance of serious harm if he were to return to Bangladesh; therefore he did not meet the requirements of the definition of refugee.

19. The IAA then went through the criteria for the complementary protection and found that he did not meet the criteria either.  Having made that decision and notifying the Applicant, the Applicant launched this application by filing it on 15 March 2018. 

20. There is one ground and one ground only.  That was:

    1. The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.

21. Obviously, I have no jurisdiction to look at the decision of the delegate of the Minister for Home Affairs and I have conducted this hearing solely looking at what it is that the Immigration Assessment Authority have concluded. 

22. I went through the history of the matter with the Applicant, who has appeared today unrepresented, with the aid of an interpreter, and asked him what error, in law, the Immigration Assessment Authority had made.  The Applicant answered that the error was that his uncle was a local BNP president, and the IAA said that he was not; that he told the IAA that the uncle was the president, and they said that they do not know about it.

23. This seems to be a complaint about paragraph 19 of the IAA’s decision. It says, about midway through the paragraph:

    …I accept that the applicant has scars on his right wrist.  However, injuries of this kind could have been sustained in any number of ways and such evidence does not overcome the very serious doubts which arise from the applicant’s unconvincing and often implausible evidence with regard to his claims about his BNP affiliated uncle, the events which led to an August 2012 Awami League attack upon his store, the manner in which he attempted to relocate to Chittagong and Sylhet but was threatened and forced to return to his home, his claims and explanations regarding the circumstances of his brothers, and the absence of any evidence of a trend wherein Bangladeshis have been forced against their will to become members of, or to otherwise join in the activities of, either the Awami League or the BNP or their associated front organisations. Given this, I am not satisfied and I do not accept that the applicant has been pressured by the Awami League or the BNP to join them, or that the applicant has ever been attacked or harassed by the Awami League.  I do not accept that the applicant has a relative who is the BNP’s local thana president in the applicant’s home area (or that this relative or the applicant are in any way associated with the BNP).  Given this, and given that the applicant does not have any political associations of any kind, or even any interest in politics or in voting, I’m not satisfied that the applicant, if he were to return to Bangladesh, would face a real chance of harm of any kind from the Awami League or the BNP.

24. This claim of error is, according to the Applicant then, merely an error of fact.  It was a statement that he had made to the delegate and therefore to the IAA, and it was a statement that was not accepted. 

25. It was certainly open to the IAA to come to that finding.  Whilst the Applicant urges that this is an error, it is simply an application to ask the Court to conduct an impermissible merits review.  There is no jurisdictional error. 

26. The Applicant further said in his statement, that he was in Chittagong in fear of his life and that people, by force, sent him back to his home, and the IAA did not accept this.  He said that this was an error.  Again, this is a matter that was looked at by the IAA.

27. They took into account what the Applicant had said and came to the conclusion that they were not satisfied that his had happened.  This is something that was certainly open to the IAA to conclude.  The submission that has been made by the Applicant today is simply an invitation to conduct an impermissible merits review.  There is no jurisdictional error established. 

28. Given that this is the total sum of the complaints that the Applicant has made in this application, that would be the end of the matter.  I have looked at the decision given by the IAA and have looked to see if there were any issues that had arisen that an unrepresented Applicant may have missed.  The Minister has done exactly the same.  There is nothing that would in any way lead to a conclusion that a jurisdictional error has occurred.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019