CCG17 v Minister for Immigration

[2017] FCCA 3140

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCG17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3140

Catchwords:
MIGRATION – Immigration Assessment Authority – protection visa – whether the applicant was denied procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DB, 473DE, 476

Applicant: CCG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1506 of 2017

Judgment of: Judge Street

Hearing date: 13 December 2017

Date of Last Submission: 13 December 2017

Delivered at: Sydney

Delivered on: 13 December 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 to pay the first respondent’s costs fixed in the amount of $5,250.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1506 of 2017

CCG17

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”) under Part 7AA made on 3 May 2017, affirming a decision of a 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 arrived in Australia as an unauthorised maritime arrival in October 2012. The applicant applied for a temporary protection visa on 19 August 2015. On 10 February 2016, the Minister’s delegate found the applicant failed to meet the criteria for the grant of the visa and refused the application. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal) for a review on 24 February 2016, and, on 4 January 2017, the Tribunal found it did not have jurisdiction to review the decision. On 6 January 2017, the Department referred the delegate’s decision to the Authority for review.

3. The applicant claims to fear harm on return to Bangladesh on the basis that he will be arrested on the basis of false charges which had been brought against him. The applicant fears that he will be targeted, tortured and imprisoned because he is a member of the Jatiyatabadi Chhatra Dal (“JCD”) and a Bangladesh National Party (“BNP”) supporter and activist, and because of his illegitimate birth to an unknown father and has been adopted. The applicant fears harm because there is no safety in Bangladesh, especially for BNP activists, and that it is a very chaotic situation.

The Authority’s Decision

1. On 6 January 2017, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority’s letter identified 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 and to put on submissions.

Material before the Authority

1. The Authority’s reasons identified the background to the visa application and identified the Authority having regard to the material referred under s 473CB. The Authority referred to submissions provided on 10 January 2017 and was satisfied that there were exceptional circumstances to have regard to information the Authority obtained that was new information.

Refugee assessment

1. The Authority summarised the applicant’s claims and evidence and set out the relevant law. The Authority was not satisfied the applicant would face a real chance of harm for reason of his being an adopted child of illegitimate birth if he were returned to Bangladesh.

2. The Authority accepted that the applicant had taken interest in local politics and that he is politically sympathetic to the BNP and would vote for BNP upon return to Bangladesh. The Authority referred to a document provided by the applicant in support of his involvement in the BNP. The Authority found it was doubtful that a formal letter of support from the local JCD and BNP leadership would refer to the applicant as being a JCD worker or the former local BNP secretary if he was, in fact, the former JCD secretary. The Authority referred to the applicant claiming that, in October 2006, when attending a BNP meeting, he was attacked. The Authority was willing to accept that the applicant was admitted to hospital for treatment of an injury to his eye. The Authority did not accept that the applicant sustained the injury in the manner the applicant claimed.

3. The Authority referred to translations of documents lodged by an Awami League (“AL”) member on 12 October 2006, which accuses the applicant and a number of other JCD members of having assaulted AL activists on 12 October 2006. The Authority referred to the documents supplied by the applicant, including purported translations of police and Court proceedings and a purported charge sheet listing several of the accused, including the applicant, as having absconded. The Authority refers to the applicant being asked how he obtained the documents, and that the applicant said he was not sure and speculated that his brother may have asked some of the other accused for copies of these.

4. The Authority made reference to the applicant having departed Bangladesh in January 2007 using his own genuine passport, which he claimed he obtained in July of 2006. The Authority found the claim that the applicant was able to depart Bangladesh on his own passport at a time when he was wanted by the Bangladesh Police was implausible. The Authority also referred to the applicant making a statement that, in the October 2012 entry interview, he travelled to Australia to seek employment and to earn money to marry rather than for the purpose of seeking protection. It was in these circumstances that the Authority did not accept that the applicant was adopted and, on the evidence, the Authority concluded that the applicant introduced this claim as a means of explaining why he has not previously introduced his claim that he was assaulted.

5. The Authority made reference to the October 2012 entry interview transcript, and that the applicant confirmed he understood the interpreter, and that the transcript identifies the applicant’s date of birth and the information recorded on the transcript regarding his family composition, place of origin, movements and employment history. The Authority was satisfied, given this material, that the applicant and the entry interview interpreter understood each other and that the applicant was not unable to provide accurate evidence as a consequence of only just having arrived in Australia.

6. The Authority was satisfied that the applicant answered “no” when he was asked whether he or any of his family members had ever been associated or involved with any political group. The Authority accepted that a person may be reluctant to state they had been falsely charged with assault, however the fact that the applicant made no mention of being in any way associated with the JCD or BNP seriously undermines the applicant’s claim that he and his father were targeted by the AL as claimed and, more broadly, that he and his father were both members of the JCD.

7. The Authority found the applicant’s evidence unconvincing regarding the reasons for not approaching the police following the alleged assault. The Authority made reference to the inconsistent information provided in the purported JCD and BNP letters regarding the specifics of the applicant’s membership and responsibilities and found those matters all undermined the credibility of the applicant’s claim to have been a JCD member who was assaulted and the target of false accusations to the police.

8. The Authority found the documents provided by the applicant to substantiate his claims do not overcome, and are themselves the source of, many of the doubts that undermine the credibility of the applicant’s claims. The Authority made reference to the ease by which fraudulent documents can be obtained and gave no weight to the purported JCD and BNP letters of support or to the documents which purport to evidence the lodging of an FIR against the applicant and subsequent associated police and Court proceedings. The Authority did not accept that the applicant or his father have been members of the JCD or the BNP or that they have ever been attacked, by AL activists or that the applicant has been the target of an FIR accusing him of assault.

9. The Authority was not satisfied that the applicant has ever been a member of, or involved in, any organised political activity with the BNP or associated movements of the JCD, nor did the Authority accept that the applicant would have any wish to be involved in activity of this kind upon return to Bangladesh. The Authority accepted that the applicant supports the BNP and that he will vote for BNP candidates, and accepted that he can be described as a very low-profile BNP supporter, though not a BNP member, activist or worker.

10. The Authority was not satisfied there is a real chance the applicant would be subjected to extortion demands, harassment or any other form of harm on the basis of his being a BNP supporter. The Authority was not satisfied that the applicant would face a real chance of harm on the basis of his membership of the Sunni Muslim and Ethnic Bengali population or his support for the BNP or from violence of a more generalised nature, such as that perpetrated by criminal and insurgent groups in Bangladesh. The Authority made reference to DFAT country information in relation to asylum seekers and was not satisfied that the applicant would, given his overall circumstances, face a real chance of harm of any kind if he returned to Bangladesh.

11. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) and found the applicant did not meet the criteria under s 36(2)(a).

Complementary protection assessment

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

Proceedings before this Court

1. On 16 June 2017, a Judge of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Nature of the hearing

1. 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 denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Authority’s decision and the review was unlawful or unfair.

2. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs. The Court explained that it would have identified the evidence and then hear submissions from the applicant and 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.

Submissions from the bae able

1. From the bar table, the applicant maintained that he had suffered an injury to his eye as alleged. This was a matter considered by the Authority in the subject of adverse findings insofar as the alleged cause of the injury asserted by the applicant. That adverse finding was open to the Authority for the reasons given by the Authority.

2. The applicant made reference to the current situation in Bangladesh. The applicant made reference to the proposition that he would rather die here in Australia than go back to Bangladesh. It was at that point that the Court interjected and explained to the applicant that it could not decide the case on compassionate grounds. The Court repeated its explanation that it could only grant relief if it finds that the Authority’s decision is affected by relevant legal error.

3. The applicant maintained that the Authority had not accepted his evidence and documents and that what he had said was true. The applicant maintained that his life would be at risk if he was returned to Bangladesh. On the face of the Authority’s reasons, the Authority had an active intellectual engagement with the applicant’s claims and evidence and made adverse findings that were open on the material before the Authority and cannot be said to lack an evident intelligible justification given the reasons of the Authority. The Authority did accept part of the applicant’s claims and made adverse findings in relation to other parts of the applicant’s claims.

4. On the face of the material before the Court, the Authority made dispositive findings in respect of the whole of the applicant’s claims and complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Authority complied with its obligations of procedural fairness in the conduct of the review.

5. The applicant’s submissions from the bar table were, in substance, to invite this Court to engage in impermissible merits review. This Court does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds in the application

1. The grounds in the application are as follows:

   1. The IAA failed to identify and act in accordance with the requirements of s473 CB of the Migration Act 1958 in making decision of the applicant's review application.

   Particulars:

   i. The IAA failed to determine well-founded fear of the applicant for which the applicant fled his country by boat risking his life in the ocean to avoid his humiliation and harm faced and is likely to face in his reasonably foreseeable future if is returned back to his country.

   ii. The IAA relied on any or all of the information in assessing and making decision of the applicant's application rather than focusing as to why the applicant applied for his TPV visa. The IAA ignored the fact that if there was no significant risk that the applicant had in his country, he wouldn't travel to Australia by boat risking his life in the ocean.

   iii. The IAA made its decision in a conventional way without realizing and satisfying the provisions of the Migration Act 1958.

   iv. The Minister (DIBP) clearly notified in writing at page No. 4 of its decision record on 10 February 2015 in title 'Review Rights' that the applicant is entitled to do his merits review of his TPV refusal decision and also in the Departmental Website on 'illegal Maritime Arrival' that the applicant would be advised if they are under the fast track assessment process and also the Website reveals that if the applicants are not eligible for the AAT review then the Department will automatically refer the case to the IAA and the Departmental letter to the applicant outlined clearly how to access his review rights from the AAT within 28 days of the decision. Whereas the Minister (DIBP) directly referred the applicant’s case to IAA and the IAA reviewed the decision without considering any of those issues and therefore the Minister and the IAA decisions contained huge procedural unfairness in deciding the applicant's application. The delegate and the IAA contemplated to matters which were not related to the refugee's convention or even beyond the Migration Act definition of refugees. The delegate and the IAA were concerned with issues not relevant to the applicant's claim made in his visa application.

   v. The IAA made its findings without any evidence or verification or hearing with the applicant before rejecting the applicant's claims in a conventional way which constitutes a non- compliance of the provisions of the Migration Act 1958.

   vi. The provisions of the Migration Act required the IAA to ensure, as far as was reasonable practicable that the applicant understood as to why the information and questions were relevant to the review applicant for the purpose of s91R (3) and s36 (2) (a a), and the consequences of being relied on in affirming the decision that is under review and the IAA has failed to do so and therefore committed a jurisdictional error.

   2. The IAA has failed to comply with the requirements of the Migration Act 1958 in making decision of the applicant's review application.

   Particulars:

   The IAA made its findings without any sound basis or evidence in rejecting the review applicant's claims of his visa application as not credible and such an act of the IAA constitutes breach of the requirement of the Migration Act 1958.

Consideration

Ground 1

1. Regarding Ground 1, the contention that the Authority failed to determine whether the applicant had a well-founded fear is unsustainable. The Authority gave detailed reasons for rejecting the applicant’s claims. The applicant’s disagreement with the outcome does not identify any relevant jurisdictional error, but rather seeks impermissible merits review.

2. The applicant’s disagreement whether there was a significant risk for the applicant is, in substance, a disagreement in relation to the merits. For the reasons already given, the adverse findings were open to the Authority. On the face of the material before the Court, the Authority correctly identified the relevant law and the assertion that the Authority failed to comply with the provisions of the Act does not identify any relevant legal error.

3. Insofar as the applicant takes issue with the nature of the review under Part 7AA, on the face of the material before the Authority and before the Court, the Authority complied with its obligations under that Part. Further, the Authority’s reasons are responsive to and reflect a dispositive determination of the whole of the applicant’s claims.

4. Insofar as the applicant claims that the adverse findings were made without hearing the applicant, the provisions of Part 7AA do not impose an obligation upon the Authority to invite the applicant to appear before it unlike the provisions of Part 7. Further, under s 473DB, subject to the provisions of the Part, the Authority is to review the fast-track reviewable decision without interviewing the referred applicant. There was no duty on the Authority to invite the applicant to a hearing.

5. The last particular in support of Ground 1 appears to pick up concepts referrable to Part 7, in respect of which there is no equivalent in Part 7AA. The Authority did have regard to new information but not a kind engaging s 473DE(1). Ground 1 fails to make out any jurisdictional error.

Ground 2

1. Ground 2 reflects a disagreement with the adverse findings by the Authority. The Authority’s adverse findings cannot be said to be illogical, irrational, or unreasonable for the reasons given by the Authority. Ground 2, in substance, invites the Court to engage in impermissible merits review. Ground 2 fails to make out any jurisdictional error.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  24 January 2018