BSQ16 v Minister for Immigration

[2017] FCCA 1123

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSQ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1123

Catchwords:
MIGRATION – Immigration Assessment Authority – the Authority complied with its statutory obligations in the conduct of the review – nothing to support the assertion that the Authority failed to bring an independent and impartial mind to the determination of the matter – it was a matter for the Authority whether it accepted the applicant’s credit or evidence – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DE, 476, Part 7A, Part 7AA

Applicant: BSQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1782 of 2016

Judgment of: Judge Street

Hearing date: 26 May 2017

Date of Last Submission: 26 May 2017

Delivered at: Sydney

Delivered on: 26 May 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S Given
HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,700.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1782 of 2016

BSQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 23 June 2016 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant departed Bangladesh on 5 October 2009 and arrived in Malaysia on 30 October 2009.  The applicant then departed Malaysia on 3 September 2012.  The applicant arrived in Indonesia on 3 September 2012 and in November 2012 the applicant departed Indonesia for Australia.  The applicant arrived in Australia as an unauthorised maritime arrival on 12 November 2012. The applicant lodged an application for protection on 19 June 2015.

The delegate’s decision

1. The applicant claimed to fear harm by reason of having been a member of Jamaat-e-Islami and claimed to fear harm from the Awami League, and to fear harm because false charges had been lodged against him.

2. On 13 May 2016 the delegate gave reasons finding that the applicant failed to meet the criteria under the Act. The delegate made adverse credibility findings and held that the applicant was never a member of the Jamaat-e-Islami, that the applicant was not targeted due to his father, uncle or grandfather being members of the Jamaat-e-Islami, that the applicant had never been threatened or harmed due to an affiliation with Jamaat-e-Islami, that the applicant had never had a false criminal case filed against him due to an affiliation with Jamaat-e-Islami.

The Authority’s decision

1. On 16 May 2016 the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review.  The Authority identified that there were only limited circumstances in which the Authority could receive new information and provided an attached facts sheet and practice directions giving the applicant an opportunity to provide new information and to put on submissions.

Information before the Authority

1. The applicant requested certain information which was provided by the Authority to the applicant. The decision of the Authority identified the applicant’s background and identified the material referred under s.473CB of the Act. The Authority identified the taking into account of country information and identified that certain country information met the requirements of s.473CB of the Act and that it was information in respect of which there was no obligation under s.473DE(3)(a) of the Act to give particulars to the applicant.

Consideration of refugee convention criteria  

1. The Authority identified the applicant’s claims for protection. The Authority correctly set out the relevant law. The Authority summarised what occurred at the TPV interview including inquiring about the applicant’s activities and in particular, how he invited people to join and vote by going to people’s houses to speak with them. In the TPV interview, the applicant provided no specific details as to what he spoke about.

2. The Authority referred to the 2015 TPV interview raising with the applicant that it seemed unlikely that he would be targeted in the manner he claims given the number of persons working in support of the Jamaat-e-Islami. The Authority noted that the applicant had responded that he and his family are members with high profiles in their area and that this is because they had been attracting people away from the Awami League to join and vote.

3. The Authority referred to the applicant giving correct information in the 2015 TPV interview and that he had given incorrect information at the 2012 arrival interview.  The Authority noted that it was raised with the applicant that at the 2012 arrival interview he had stated that he had departed Bangladesh for Malaysia, and then Malaysia for Australia because he was poor.

4. The Authority also referred to the fact that the applicant did not claim any involvement with a political party at the time of the arrival interview in 2012 and how that undermined the applicant’s credibility in respect to his claim to have been a member and supporter of the Jamaat-e-Islami, and the applicant’s to claim to fear harm on that basis.

5. The Authority did not accept that the applicant departed Bangladesh for the reasons claimed but did accept that he departed in an irregular manner without a passport.  The Authority was not satisfied there was a real chance that the applicant would, if he returned to Bangladesh, be harmed by the Bangladesh authorities or the Awami League supporters by reason of his association with Jamaat-e-Islami.

6. The Authority was not satisfied there was real chance the applicant would be harmed by the Bangladesh authorities for having illegally departed Bangladesh and/or having sought asylum in Australia. In taking into account the applicant’s claims and profile and available country information, the Authority was not satisfied that there is a real chance the applicant would face harm upon return to Bangladesh or for any other reason. 

7. The Authority found that the applicant failed to meet the definition of refugee in s.5H(1) of the Act. The Authority found that the applicant did not meet the criteria under s.36(2)(a) of the Act.

Consideration of complementary protection criteria

1. The Authority found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. On 8 September 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant did provide submissions dated 18 October 2016. Those submissions sought to take issue with the process conducted by the Authority and, in particular, referred to provisions under Part 7A of the Act. The review conducted by the Authority was under Part 7AA of the Act.

2. The grounds in the application are as follows:-

   1. The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Jamaat-e-Islami (JI) Party prior to my departure from Bangladesh

   2. The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.

   3. The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

   4. The Administrative Appeal Tribunal officer erred in not finding that the DJBP erred in law amounting to jurisdictional error in finding that l do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out ins 36(2) of Protection Visa.

   5. The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Authority’s decision is unlawful or unfair. The Court explained that if the Court was satisfied the Authority’s decision was unlawful or unfair, the decision will be set aside and sent back for further hearing. The Court explained that if the Court was not satisfied the Authority’s decision was unlawful or unfair the application ought be dismissed. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Applicant’s submissions from the bar table

1. From the bar table the applicant maintained that he had not been given a fair hearing and that the country information was not cited and did not address the grassroots problems that he would face. The applicant alleged the country information was prepared by the government and did not reflect the real situation that he would face. The applicant maintained that he would be killed if he was returned to Bangladesh.  The applicant disagreed with the outcome by the decision of the Authority and maintained that he had been telling the truth.

Consideration

1. The adverse credibility findings made by the Authority were open for the reasons given by the Authority and cannot be said to lack an evident and intelligible justification.  On the face of the material before the Court the Authority complied with its statutory obligations in the conduct of the review.  On the face of the material before the Court the applicant was given an opportunity to provide new information and to put on submissions and the Authority complied with its obligations of procedural fairness in that regard. The applicant’s submissions from the bar table were in substance an invitation to this Court to engage in an impermissible merits review. 

2. The Court explained to the applicant that the Court did not have power to revisit the merits and could not make fresh findings of fact. The Court explained to the applicant that it only could revisit issues of credibility if the Court was satisfied that the adverse findings were irrational, illogical or unreasonable. The Court explained to the applicant that part of the reasons identified in the Authority’s decision referred to why the Authority had rejected the applicant’s credit. 

3. The applicant maintained that he could not be sent back to Bangladesh and that he would be killed. The Court again explained to the applicant that it did not have power to determine the matter on compassionate grounds and repeated the explanation in respect of the limited powers of the Court. Nothing said by the applicant from the bar table identified any jurisdictional error.

4. Grounds 1 to 5 of the application reflect in substance a disagreement with the adverse findings of the Authority and invite this Court to engage in an impermissible merits review. No jurisdictional error is identified by grounds 1 to 5. 

5. In relation to the applicant’s submissions and particulars in expansion of the grounds, the nature of the review was one conducted under Part 7AA of the Act and the provisions of Part 7A of the Act are irrelevant. For the reasons already given, on the material before the Court the Authority complied with its obligations in the conduct of the review and there is no apparent error of law in its determination or any apparent denial of procedural fairness to the applicant.

6. There is nothing to support the assertion that the Authority failed to bring an impartial mind to the determination of the matter before it. The adverse findings made by the Authority is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. On the face of the material before the Court, the Authority conducted the review with an open mind reasonably capable of persuasion. No case of bias is made out. The assertion of non-compliance with the provisions of Part 7A of the Act does not give rise to jurisdictional error by the Authority.

7. It was open to the Authority to make adverse findings in relation to the applicant particularly in circumstances of the present case where adverse credibility findings have been made by the delegate. The country information to which the Authority referred was a matter for the Authority and the applicant’s disagreement with that country information does not identify any jurisdictional error. There is no substance in the contention that the adverse findings by the Authority were not supported by evidence. It was a matter for the Authority whether it accepted the applicant’s credit and the applicant’s evidence. 

8. Further, the Authority’s reasons reflect the orthodox approach to the conduct of the review and the Authority in its reasons took into account the applicant’s claims in evidence. For the reasons given, the adverse findings were open and there is no substance in the assertion that the adverse findings were unreasonable.  Further, there is no substance in the assertion that the adverse findings in respect of the applicant’s credit were unreasonable. 

9. Nothing in the applicant’s submissions established jurisdictional error by the Authority in the conduct of the review. Insofar as the originating application makes reference to the decision of the delegate of 13 May 2016, this Court has no jurisdiction to review the delegate’s decision. Nothing in the applicant’s application or submissions identifies any jurisdictional error. 

Conclusion

1. The application is dismissed. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  7 June 2017