Buu18 v Minister for Home Affairs
[2018] FCCA 2174
•9 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUU18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2174 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s decision was legally unreasonable – whether the Authority complied with procedural fairness – whether the Authority complied with its statutory obligations – whether the Authority had an obligation to extend time – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 5H, 5J, 36, 473BA, 473CB, 473CC, 473DB, 473EA, 473FB, 476. |
| Applicant: | BUU18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 999 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 9 August 2018 |
| Date of Last Submission: | 9 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2018 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Mr T Galvin MinterEllison |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,200.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 999 of 2018
| BUU18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 20 March 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australia on 2 January 2013 as an unauthorised maritime arrival. The applicant claimed to fear harm from the Awami League due to his Bangladesh National Party (“BNP”) support. On 25 January 2018, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
The Authority
On 2 February 2018, the Authority wrote to the applicant explaining that the application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information in submissions. The Authority did receive an email from the applicant dated 14 February 2018, which the Authority took into account.
The applicant was found to be a Sunni Muslim of Bengali ethnicity and was born in a particular village in the Jessore district, Bangladesh. The applicant alleged that between 2006 and 2008 he was often called by the BNP to attend activities which he was paid to attend. The applicant alleged that when some of the applicant’s friends who were Awami League supporters found out they asked the applicant to join them and the applicant initially refused. The applicant alleges he eventually joined an Awami League rally for which he was paid. The applicant alleges when he returned from the rally he was stopped by the BNP supporters who slapped him and warned him not to join the Awami League.
The applicant alleged he felt pressure from both parties to join them and contacted an agent who was to arrange his travel to Italy. The agent took the applicant’s money but did not make any travel arrangements and when the applicant attempted to obtain the return of his money the applicant alleges he was beaten and shot at. The applicant alleges he went to the police to file a case against the agent and the police asked for money in order to bring the case against the agent.
The applicant also alleges there was an incident in 2008. After trying to obtain the money back from the agent, the applicant alleged the BNP came to his family home and asked the applicant to join in the campaign, assuring him that they would protect him. The applicant alleges when the Awami League found out the applicant was involved with the BNP they threatened to harm him after the election.
The applicant alleges in 2011, when the Awami League was in power, the applicant was stopped by Awami League members when he was at the market and slapped. The applicant alleges he used a metal rod to attack them and one of them was hurt and he left the village and ran away. The applicant alleges the Awami League members attacked his brother and warned that they would kill the applicant if they found him. The applicant alleges that in 2011, the Awami League person that he had hit with the metal rod saw him and the applicant ran away. The applicant alleges in 2012, the agent, who was the Awami League leader, filed a false case against the applicant and his brothers. The applicant alleges since his departure the Awami League has occasionally visited his family home and harassed his parents. The applicant also alleges that the Awami League, when his brothers were in Bangladesh in 2016/2017, thought the applicant was there and attacked his brothers.
The Authority accepted that the applicant attended many BNP activities in 2007 and one Awami League rally. The Authority found that the applicant was paid to attend these rallies to bolster attendance and did not have a strong personal interest or commitment to either the BNP or Awami League. The Authority accepted the applicant may have voluntarily joined in occasional BNP activities in the latter half of 2008 prior to the election but did not accept that this was due to any strong personal commitment to the BNP. The Authority was not satisfied the applicant was an active BNP supporter in his village after the 2008 elections or that he participated in any meetings or rallies between 2009 and his departure in 2012. The Authority accepted the applicant may have recently taken interest in the BNP Australia but was not satisfied that his interest in BNP in Bangladesh was prompted by any strong personal or political affiliation with BNP ideologies or interest in politics.
The Authority accepted that the applicant may have approached an agent to arrange for him to go abroad who stole his money and that the applicant may have attempted to secure the return of his money and that he may have been assaulted as a warning not to pursue the matter further. The Authority did not accept that the agent was an Awami League leader, that the applicant was harassed by the Awami League, or that the applicant’s issues with both parties were the reasons of him wishing to leave Bangladesh.
The Authority accepted the applicant may have attempted to report his assault to the police who refused to file any case unless the applicant gave them money and that the agent may have attended the police station and paid a bribe to the police. The Authority did not accept that the agent would have asked the police not to file a case against Awami League people or himself as an Awami League leader. The Authority did not accept the applicant went into hiding after the 2008 elections, that the Awami League attempted to assault him in 2011 or that a false case was lodged against him in 2012.
The Authority did not accept the applicant’s brother was attacked and threatened by Awami League in 2011, that his brothers and parents were harassed either before or after his departure from Bangladesh, that his brothers were BNP supporters or active in any way with the BNP, or that they travelled to Malaysia due to harassment arising from either the BNP support or the applicant’s former BNP support. The Authority did not accept the applicant was recognised in Dhaka by political party members from his village or that he was of any interest to the agent or the Awami League prior to his departure from Bangladesh in 2012.
The Authority was not satisfied that there is a real chance of the applicant suffering any harm on return to Bangladesh from the Awami League or the police due to any past BNP involvement or support. The Authority was not satisfied the applicant would be otherwise politically active on return to Bangladesh, or that his involvement would extend beyond merely supporting the party. The Authority was not satisfied the applicant faces a real chance of any harm as a result of any past or future BNP support.
The Authority was not satisfied that there was a real chance of the applicant facing any penalties including detention and/or imprisonment as a result of his illegal departure. The Authority was not satisfied the applicant faces a real chance of any harm by the government authorities or others as a returning asylum seeker who departed illegally.
The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.
The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Bangladesh, there is a real risk the applicant would 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
These proceedings were commenced on 11 April 2018. On 3 May 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court. The applicant put no submissions from the bar table when invited to do so.
The grounds
The ground in the application is as follows:
Ground 1
The authority’s decision to refuse my case I believe is affected with legal error. At this point I do not have a lawyer representing me, I intend to engage a lawyer once the court book is produced.
Particulars
– I will provide particulars later once I receive the court book.
Ground 1
In relation to ground 1, the generalised assertion that the Authority’s reasons is affected by legal error does not of itself identify any jurisdictional error. On the face of the material before the Court, the Authority made dispositive findings in respect of the applicant’s claims that were open to the Authority for the reasons given by the Authority.
The first respondent, as a model litigant, has drawn the Court’s attention to an email sent by the applicant on 2 March 2018 to the Authority requesting an extension of time to provide further submissions. The Authority responded to the email on 2 March 2018 refusing the request for an extension of time. The Authority in that regard referred to the 21 day period that the applicant had already had to put on submissions having expired on 23 February 2018, and was not satisfied that the circumstances warrant extending the time in this case.
The Court takes into account the nature and scope of the powers given to the Authority under Part 7AA of the Act, including the obligation to conduct a review under s 473CC of the Act and, subject to the provisions of the Part, that the Authority is to conduct the review on the material provided under s 473CB of the Act pursuant to s 473DB of the Act. The Court also takes into account that the only obligation in the Part to provide reasons is that identified in s 473EA of the Act.
The opportunity given to the applicant to put on submissions was one identified pursuant to a practice direction under s 473FB of the Act which requires the Authority, as far as practical, to comply with the directions. The Authority’s exercise of a statutory power in the present case not to extend time clearly took into account the practice direction and cannot be said to lack an evident and intelligible justification. There is no legal unreasonableness in the Authority’s refusal to extend time for the applicant to put on further submissions in the circumstances of the present case.
On the face of the material before the Court, there is no basis to find, either by conduct, process or outcome, that the decision of the Authority is an abuse of power or legally unreasonable. The Court has also taken into account s 473DB(2) of the Act that permits the Authority to make a decision of a fast track reviewable decision at any time after the decision has been referred to the Authority. The Court also takes into account the simplified outline of Part 7AA s 473BA of the Act that the Authority is required to pursue the objective of providing a mechanism of limited review that is efficient and quick.
Conclusion
As the application fails to disclose any relevant legal error and as the Court is not satisfied there is any relevant legal error apparent on the material before the Court, the application is dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 28 September 2018
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