BXP18 v Minister for Home Affairs

[2018] FCCA 3477

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXP18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3477

Catchwords:
MIGRATION – Assertions of applicant that he reasonable feared harm not credible – authority had correctly addressed all relevant issues – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 473DB, 476

Cases cited:

Minister for Immigration and Citizenship v Li [2013] 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Perera v Minister for Immigration and Multicultural Affairs [1999] 92 FCR 6
SZSTA v Minister for Immigration and Citizenship [2013] FCA 774
SZSEI v Minister for Immigration and Border Protection [2014] FCA 46
SZTDZ v Minister for Immigration and Border Protection [2014] FCCA 1861

Applicant: BXP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 373 of 2018

Judgment of: Judge Egan

Hearing date: 5 November 2018

Date of Last Submission: 5 November 2018

Delivered at: Brisbane

Delivered on: 5 November 2018

REPRESENTATION

Applicant: Self-represented

Solicitors for the Respondents: MinterEllison

IT IS ORDERED ON A FINAL BASIS THAT:

1. The Application filed 16 April 2018 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 373 of 2018

BXP18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is a national of Bangladesh, and a citizen of that country.  He is a Sunni Muslim and an ethnic Bengali who originates from Bosaratuli village in the Fulbaria union of Kaliakor Upazila in the Gazipur District of Bangladesh’s Dhaka Division.

2. He arrived in Australia on 1 June 2013 and was, at the time, an unauthorised maritime arrival.  On 7 July 2016, the Applicant was invited to apply for a SHEV (Safe Haven Enterprise Visa).  On 16 May 2017, the Applicant applied for a SHEV. 

3. On 7 June 2017, the Applicant was invited to attend a protection interview to discuss his application and his claims.  The Applicant subsequently attended that interview.  On 5 July 2017, a delegate of the Minister refused to grant to the Applicant a SHEV.  The delegate’s decision was a fast-tracked reviewable decision.

4. On 11 July 2017, the Minister referred the delegate’s decision to the Immigration Assessment Authority (“IAA).  On 29 March 2018, the IAA affirmed the delegate’s decision to not grant the applicant a SHEV. 

5. On 16 April 2018, the Applicant filed an application pursuant to section 476 of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of the decision of the IAA.

6. On 23 May 2018, the Applicant was ordered to file and serve any amended application by 8 August 2018, and to file and serve written submissions by 28 days prior to the hearing – that is, by 8 October 2018. The Applicant has not filed any amended application or an outline of submissions.

7. By way of background, the Applicant claimed to have been a supporter of the Awami League since 2005, and to have feared harm as a result of his political opinions. He alleged that he had been attacked by members of the Bangladesh National Party (“BNP”) and Jamaat-e-Islami (“JI”) on 21 February 2013 when, according to him, he was in the process of transporting Awami League supporters by bus as part of his transport business. The Applicant claimed that, following that incident, he went into hiding, and that his father received threatening phone calls. The Applicant did not report the alleged incident or the alleged subsequent threats to the police because the Applicant said that he feared that the authorities were corrupt.

8. In March 2013, the Applicant departed the Gazipur District and stayed with a cousin in Chittagong for between 10-15 days before travelling to Australia. The Applicant also asserted that he feared harm from the Bangladesh Government for departing Bangladesh illegally, alleging that he would be returned as a failed asylum seeking and punished thereby.

9. The IAA accepted that the Applicant was a citizen of Bangladesh, that his father had fought for the independence of Bangladesh during the war of 1971,[1] that the Applicant owned a bus and operated a transport business from around 2010[2] and that the Applicant departed Bangladesh illegally by boat.[3]

   [1] CB p. 163 at [16].

   [2] CB p. 163 at [17].

   [3] CB p. 164 at [18].

10. The IAA, however, found that, in large part, the Applicant’s claims, and his evidence, were unconvincing. The IAA noted inconsistencies in the Applicant’s evidence regarding the alleged occurrence of the incident on 21 February 2013; the way in which the Applicant alleged that he had become aware that his attackers were BNP or JI supporters;[4] and the claim that the Applicant had supported the Awami League since 2005.[5]

    [4]     CB p. 158 at [8]

    [5]     CB p 159 at [9] – [10].

11. During the course of the hearing before the IAA, the IAA considered three letters allegedly provided by members of the Awami League to the Applicant in support of his protection claims.  The IAA noted numerous inconsistencies in the evidence, and found that the letters:

    …raised further doubt about the credibility of the Applicant’s claim to have been an Awami League supporter who was attacked and threatened for having transported Awami League supporters.[6]

    [6] CB p. 160 at [11].

12. The IAA, when considering the contents of a medical certificate from March 2017, accepted that the Applicant was treated for lacerations to his head, shoulder and ankle in February 2013, but it was not satisfied that that evidence overcame the other doubts and inconsistencies which undermined the Applicant’s claim[7]

    [7] CB p. 162 at [15].

13. Whilst the IAA accepted that the Bangladesh police services had been tainted by corruption, the IAA found it implausible that the alleged incident of 21 February 2013 was not actioned or addressed in any way by the Awami League’s national leadership, who held influence over the police at the time.[8]

    [8] CB p. 161 at [13].

14. The IAA did not accept, based on a consideration of all of the evidence available to it, that the Applicant had been attacked on 21 February 2013, as alleged by him, or that he had been subsequently threatened by supporters of the BNP or JI.[9]

    [9] CB p. 162 at [15].

15. In terms of harm, the IAA was not satisfied that the Applicant would face a real chance of harm:

    a)from the BNP or the JI as a result of any alleged incident on 21 February 2013, or by reason of the Applicant’s alleged support of the Awami League;[10]

    b)due to his father’s profile, or because the Applicant would be imputed with his father’s political views;[11]

    c)as a result of targeted political violence;[12]

    d)for departing Bangladesh illegally;[13] or

    e)as a failed asylum seeking returning to Bangladesh[14]

    [10] CB p. 162 at [15].

    [11] CB p. 163 at [16].

    [12] CB p. 163 – 164 at [17].

    [13]    CB p. 164 at [18]

    [14] CB p. 164 at [18].

16. Also, the IAA was not satisfied that the Applicant satisfied the complementary protection criteria, given that the IAA had found that the Applicant did not face a real chance of experiencing harm of any kind if he was to return to Bangladesh.[15]

    [15] CB p. 165 at [23].

17. Indeed, at [17] of the reasons,[16] the IAA found:

    Moreover, the broader evidence before me indicates that the victims of political violence in Bangladesh in recent years have overwhelmingly been, and will continue to overwhelmingly be for the foreseeable future, supporters of political parties (and especially the activists of student fronts) who actively engage in clashes with police and/or with the supporters of rival parties and/or with the rival factions of their own parties.  Instances of harm to politically uninvolved persons (such as transport workers, commuters and bystanders) have occurred in recent years but, even allowing for future times of heightened political unrest such as elections, the evidence before me does not indicate, and I am not satisfied, that the Applicant would face a real chance of harm of any kind from the kind of political violence which can occur sometimes in Bangladesh if he were to return to Gazipur District, even if he were to resume employment in the transport industry. 

    [16]    CB p. 164.

18. The IAA relied upon relevant country information, dated 5 July 2016, and other reports of 2017 in that regard.

19. The grounds of review relied upon by the Applicant are as follows.

20. As to ground 1, the Applicant widely asserts that the IAA failed to consider each part of the Applicant’s claim, albeit not particularising any particular matter in that regard.  The IAA reasons demonstrate that it considered each of the Applicant’s claims but did not accept them.  The IAA findings were plainly open for it to make, and the reasons provided did not lack a logical or probative basis, or an evident or intelligible justification.  The Applicant was not believed by the IAA.

21. As to the assertion that because the Department took 50 days to reach a conclusion as to his application for the visa, the Department must not have undertaken any due inquiry or investigation of his claims, this Court does not have power or jurisdiction to review the delegate’s decision, and that claim therefore is without merit. 

22. Secondly, the Applicant asserted that the IAA had failed to consider relevant information about atrocities allegedly committed by the BNP in Bangladesh.  The particulars did not identify the basis on which it was asserted that such information was before the IAA, or, if it was before the IAA, where it was.  The Applicant did not provide any new information to the IAA following the delegate’s decision. 

23. The IAA had properly considered the available evidence before it, and made findings that were reasonable and logically open to it on the evidence.  The IAA appropriately reviewed the decision “on the papers”.[17] There is no merit to this ground.

    [17]    Migration Act 1958 (Cth) s 473DB.

24. As to ground 2 of the Application, it is asserted by the Applicant that the IAA erred by failing to give solid evidence of cumulative credibility concern in response to the Applicant’s claims and evidence.  The IAA did in fact consider the Applicant’s claims, and each piece of evidence in support of those claims, and it made adverse credibility findings against the Applicant in that regard.  Such findings were open to it on the evidence.  The IAA gave cogent reasons in support of its findings, and those findings were not ones which “no rational or logical decision-maker could arrive at based on the same evidence”,[18] nor could it be said that the IAA’s reasons lacked an “evident and intelligible justification”.[19] 

    [18]    Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [130]

    [19]    Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [76]

25. There is nothing before the Tribunal to suggest that the Applicant had provided any further documents or information to the IAA, as new information or otherwise, and, in those circumstances, the Applicant’s allegation that there was jurisdictional error is without merit.

26. As to ground 3, the Applicant contends that the IAA failed to apply the correct test when considering the Applicant’s protection claims against the complementary protection criteria in section 36(2)(aa) of the Act. However, the IAA did accurately summarise the test to be applied pursuant to that section, and correctly assessed the Applicant’s claim against the complementary protection criteria.[20]

    [20]    See [17-23] of reasons at CB162-166 inclusive

27. The IAA referenced its reasons for rejecting the Applicant’s protection claims based on section 36(2)(aa) to the reasons given in the body of the decision, which reasons themselves were based upon a thorough analysis of the evidence before the IAA. In those circumstances, it cannot be said that the IAA failed to properly address the issue. The IAA was not required to engage in a miniscule examination of each and every possible reason why it rejected the Applicant’s complementary protection claims, in circumstances where the facts giving rise to such claims were the same as those which related to the Applicant’s claims for refugee status.[21]

    [21]    See SZSTA v Minister for Immigration and Citizenship [2013] FCA 774 at [56]; and SZTDZ v

28. The Applicant otherwise asserted that he couldn’t understand the interpreter during the interview with the delegate.  But there is nothing in the material which suggests that there was any such problem at any time, or that the issue was raised by the Applicant at the delegate interview stage.  It has not been demonstrated by the Applicant that the standard of interpretation at the interview was so inadequate that the Applicant was deprived of a real and meaningful opportunity to present his claims.[22]

    [22]    See Perera v Minister for Immigration and Multicultural Affairs [1999] 92 FCR 6; and SZSEI v

29. The Applicant has failed to demonstrate any inadequacy in relation to interpretation.  No jurisdictional error has been established.  It follows that that ground is also without merit.

30. For the above reasons, the application for review is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  4 December 2018

    Minister for Immigration and Border Protection [2014] FCCA 1861 at [24]    Minister for Immigration and Border Protection [2014] FCA 465 at [71-81]