CHM16 v Minister for Immigration

[2017] FCCA 1464

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHM16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1464

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the applicant was denied the opportunity to present his case – whether the Authority properly considered the refugee criterion – whether the applicant was denied procedural fairness – whether the Authority properly considered the complementary protection criterion – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DA, 473DD, 476.

Applicant: CHM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2246 of 2016

Judgment of: Judge Street

Hearing date: 27 June 2017

Date of Last Submission: 27 June 2017

Delivered at: Sydney

Delivered on: 27 June 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2246 of 2016

CHM16

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA, made on 27 July 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a national of Bangladesh and his claims were assessed against that country. The applicant claimed to fear harm by reason of an alleged outstanding murder charge against him as well as being afraid of the Awami League by reason of his alleged involvement in the BNP.

3. The applicant left Bangladesh for Malaysia, arriving on 4 October 2007, and allegedly departed Malaysia in October 2012 and returned to Bangladesh arguably in October 2012 and departed for Australia in November 2012.

4. Prior to the decision of the delegate on 14 June 2016, the delegate sent the applicant a letter identifying at the entry interview the applicant had indicated that he had returned to Bangladesh to obtain his driver’s licence and that his driver’s licence was dated 11 September 2010. The delegate raised that the applicant travelling from Malaysia to Bangladesh may indicate that the applicant did not have a fear of harm in Bangladesh as claimed.

5. The applicant arrived at Christmas Island as an unauthorised maritime arrival on 12 November 2012. The applicant attended an initial arrival interview on 14 November 2012. At that time the applicant said he left Bangladesh for economic reasons.

The Delegate’s Decision

1. On 17 August 2015, the applicant applied for a Safe Haven Enterprise visa. The delegate accepted that the applicant returned to Bangladesh for a brief period to obtain his Bangladeshi driver’s licence. The delegate made adverse findings in relation to the applicant as a result of inconsistencies in the applicant’s testimony between the interview and his unwillingness or inability to volunteer contextual information, which the delegate also found to be vague.

2. The applicant had provided submissions dated 10 November 2015 to the delegate suggesting that there had been confusion at the time of the initial interview. The delegate indicated that the delegate had listened to the recording. The delegate did not accept that the applicant did not mention a BNP affiliation due to emotional trauma from his journey to Australia and that gave rise to concern as to the applicant’s credibility in respect to his membership of the BNP. The delegate was not satisfied the applicant was a member of the BNP.

3. The delegate did not accept that the applicant was attacked for an actual or imputed political opinion. The delegate found in relation to the applicant’s allegation of being charged for murder that the applicant was unable or unwilling to sufficiently explain the legal process that he claims he went through, even on a subjective and personal view. The delegate found that the applicant had fabricated the arrest for the purpose of strengthening his claim for protection.

4. The delegate made reference to a report purportedly in support of the applicant being involved in an alleged trial. The delegate was unable to find information about the claimed issuer of the report to verify its authenticity.

5. The delegate did not accept that the applicant was ever involved with the BNP and did not accept that the applicant was attacked by the Awami League or falsely accused of murder. The delegate found the applicant was not a credible witness. It was in those circumstances that the delegate found that the applicant failed to meet the criteria for a grant of the visa under the Act. The delegate found the applicant was not an excluded fast track applicant.

The Authority’s Decision

1. On 16 June 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority’s letter explained that there are only limited circumstances in which the Authority could consider new information and enclosed an attached fact sheet and Practice Direction. The letter provided the applicant with an opportunity to put on new information and to put on submissions.

Information before the Authority

1. Consistent with the letter, submissions were provided to the Authority on the applicant’s behalf on 8 July 2016. Those submissions repeated the assertion that there was a problem with the interpreter as an explanation of the adverse findings about the applicant’s credit by the delegate.

2. The Authority identified the applicant’s background and having regard to the material referred to it under s.473CB of the Act. The Authority made express reference to the submissions dated 8 July 2016 made on behalf of the applicant. The Authority found that there were references in those submissions to country information that was not before the delegate and which would constitute new information.

3. There was also documentary evidence provided with the submissions in relation to the applicant’s mother receiving medical treatment in India and his brother working in Malaysia. The Authority was not satisfied that the country information that was not before the delegate or the documents in relation to the applicant’s mother and brother met the requirement of exceptional circumstances to justify consideration under s.473DD(b).

Refugee assessment

Involvement with the BNP

1. The Authority identified the applicant’s claims for protection. The Authority set out the relevant law. The Authority made express reference to concerns about the quality of interpreting during the interview. The Authority found that the Authority was satisfied, having listened to the interview, that the applicant was made aware in the interview for the Safe Haven Enterprise visa preamble to let the delegate know if he had difficulties with the interpreter. The Authority also noted that the applicant responded on occasions directly in English to the delegate.

2. The Authority was satisfied that there were sufficient opportunities for the applicant to clarify and provide more detail on the issues discussed. The Authority did not accept that language barriers prevented a meaningful communication.

3. The Authority made reference to a letter provided by the chairman purporting to assert that the applicant was an active member of the BNP. The Authority was not satisfied that the letter overcame the Authority’s concerns with the applicant’s evidence and decided to place no weight on that document.

4. The Authority made reference to the entry interview and the applicant’s assertion that he did not raise his BNP involvement because he was too traumatised by the boat journey and was very scared to answer questions. The Authority, whilst acknowledging the time at which the entry interview was conducted, indicated that it took into account the submissions and, having listened to the audio recording of the entry interview, did not accept that the applicant was too frightened and traumatised to answer questions accurately.

5. The Authority did not accept the applicant’s explanations as to why he did not mention his and his family’s BNP involvement or their problems with the Awami League in his entry interview. The Authority was not satisfied the applicant or any members of his immediate family were politically active with the BNP. The Authority, whilst accepting that the applicant was attacked by a group of men in 2007, did not accept that that was politically motivated or that he received threats through his mother from the Awami League. The Authority found that the 2007 attack was an isolated criminal incident and that no other threats were issued.

6. The Authority found that there was no evidence that the applicant would be politically active upon return to Bangladesh. The Authority did not accept that the applicant would be imputed as an active member of the BNP or that he would be identified as holding a pro-BNP opinion upon return. The Authority did not accept that the applicant faces a real chance of being killed or otherwise harmed by the Awami League or anyone else on account of any BNP affiliation.

Murder charge

1. The Authority did not accept the applicant’s claims regarding the murder charge or the supporting documents or threats from the Awami League to be credible. The Authority did not accept that the applicant is politically aligned to the BNP and did not accept that the applicant was accused of murder. The Authority found that there is no basis to indicate that the police would withhold protection for any reason from the applicant. The Authority found the applicant does not face a real chance of being harmed by the authorities or the Awami League in relation to the alleged murder or for any other reason upon return.

Other risks

1. The Authority was not satisfied the applicant will be prevented from obtaining employment or that he would not be able to subsist upon return for any reason. The Authority was not satisfied that the applicant faces a real chance of harm on that basis.

Conclusion

1. The Authority found that the applicant was not of adverse interest to the authorities before his departure and did not accept that he had become of interest to them while abroad. The Authority found the applicant does not face a real chance of being charged, imprisoned or fined or otherwise harmed upon returning to Bangladesh as a failed asylum seeker from Australia.

2. The Authority was not satisfied the applicant faced a real chance of harm from the Awami League, authorities or others on account of his claimed political involvement, fabricated criminal charges against him, his poor financial situation, or any other related reason. The Authority found that the applicant failed to meet the requirements of the definition of refugee in s.5H(1) and found that the applicant did not meet the criteria in s.36(2)(a).

Complementary protection assessment

1. The Authority proceeded to address the issue of complementary protection and was not satisfied that the applicant has had any involvement with the BNP and did not accept that the applicant faced a real chance of being killed or otherwise harmed for that reason. The Authority found that the applicant did not face a real risk of significant harm for reasons of political activity upon return. The Authority did not accept the applicant faces a real chance of persecution through generalised political violence.

2. The Authority did not accept that the applicant will face discrimination that would amount to significant harm for the purpose of s.36(2A). The Authority did not accept that the applicant would be subject to extortion upon return and was not satisfied the applicant faced a real risk of significant harm on account of his returning as a failed asylum seeker. The Authority was not satisfied, having considered the applicant claims cumulatively, that he would face a real risk of significant harm in the reasonably foreseeable future if returned to Bangladesh. The Authority found that the applicant did not meet the criteria under s.36(2)(aa) of the Act.

Proceedings before this Court

1. On 10 November 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. On 31 January 2017, an amended application was filed on behalf of the applicant and no other documents.

Grounds of the application

1. The grounds of the amended application (re-numbered) are as follows:

   1. The applicant claims he was denied natural justice and procedural fairness when IAA made decision without following S 424 of the Migration Act. The applicant missed opportunity to present his arguments and clarify his claims in favour of his claim . The IAA totally based their decision on the submission by reperesentative. The IAA did not give chance to the applicant to forward information according s 473 DC (1 )of the Act .He was denied procedural fairness.

   2. Particular : The IAA made opinion that the representatives' submission does not constitute new information as defined in s473DC(I) of the Act .( GREEN BOOK P386 Col 4)

   3. The applicant claims if the IAA believed that the submission was only arguments responding to the Delegates decision then why the applicant was not called to appear before the IAA to give new information in favour of his claim? The applicant has a legitimate expectation from the IAA that it would provide procedural fairness to the Applicant. The Applicant claims that the IAA acted in this matter not as a Judicial body but as a part of the machinery of Departmental administration .

   4. The applicant claims that the AAT made a judicial error when it was more concerned itself merely issue of legality rather than merits of the matter or decision in dispute.

   5. The applicant claims that the IAA made a jurisdictional error when it did not Apply the test for persecution according to the rule of the Migration Act.

   Particulars:

   The applicant claims that the IAA formed the opinion based on the limited information about the possible harm to the applicant.

   At the SHEV interview the applicant was able demonstrate that he has sound knowledge of the Policy and Programes of BNP and he was engaed in the Political and organisational activities of the BNP party in his area.

   “The IAA has accepted that “the applicant was able to describe the BNP flag and provided some basic information including the name of the previous BNP Forest Minister{ Tariqui Islam} . He claims that in Bangladesh it is the grassroots workers who were attacked more than high profile leaders and he was targated because he went to the office and helped the people . I have had regard to this and have taken account the post-interview submission of1 November 2015 indicating that te applicant 's education level should be taken account and that his political knowledge should be considred free of western perception of political Participation . It was submitted that parliamentary dialogue is often boycotted and eschewed b street level confrontation through and government hartal or general strike and that this is consistent with applicant's experience Of attending public meetings or rallies for the BNP party .”(Green Book PP389-90 col-18.)

   The applicant claims that the IAA msiconstruid or mistook the facts with regards to the significant harm to the applicant caused by the Awami League Party workers. The applicant gave the reasons why he was unable to present his claim properly at first Entry Interview.

   The applicant claims that at SHEV interview the quality of interpreting was worst. The Bangali Languge Interpreter was speaking in Burmese Accent. The applicant did not understand him (Interpreter) at all and he( Interpreter) did not tell all the things to the Officer what the applicant wanted to tell.

   There was communication error. The applicant claims he was denied procedural fairness at the first stage . He was not really represented .

   He claims that the IAA did not account Interpreting problems and made opinion with the closed mind . When the Applicant had a opportunity to present oral and evidence in support of his claim the First Respondent formed the view that the applicant's oral and written evidence of significant harm was framed and nothing happen to the applicant .

   The applicant provided a letter of support from the Chairman for whom he worked . The letter attested the applicant he was an active member of the BNP who had run away after being falsey accused of murder by opposition party( AL) members . The letter attested that the applicant now risks being hung in relation to the case or killed by local gangs.

   The applicant claims he has well- founded fear of persecution being a member of the BNP and there is real chance of significant harm if he is compelled to go back to his country Bangladesh .

   As the IAA believed that there is a inconsistency in his statements given at the time of First application and SHEV interview, the applicant claims that he had no knowledge of preparing application for Protection Visa or SHEV application.

   The applicant's representative forwarded maximum possible evidence of his situations and circumstances in which he left Bangladesh. The applicant's representative forwarded the evidence of medical treatmentof his mother in India on 12 November 2015 and brother is working in Malaysia.

   The IAA discarded these evidences because it was not presented before the Delegate without acknowledging the difficulties in getting documents and time frame of receiving documents from Bangladesh.

   Once the applicant is not there in Bangladesh how he could collect all the evidence of his claim. The IAA did not account all the circumstances in getting information from overseas in absence .

   The applicant claims that the IAA fulfilled mere formalities and ignored singnificant aspect of harm and test for persecution . The IAA did not account current information about the torture and arrest of BNP supporters by the Awami League supported Government Bangladesh by the AL and BNP supporters.

   The IAA made a jurisdictional error when it failed to provide reasons for the decision pursuant to section 36(2) (aa) of the Migration Act (Under the complementary Protection Visa Clauses ).

   Particulars:

   The IAA explicitely failed to provide separate reasons to its consideration under section 36(2) (aa) of the Migration Act.

   The IAA formed opinion on assumption and concluded that the return of failed asylum seekers is unlikely to be reported by airport authorities to any other agencies , beyond the normal processes for recording the movements of national .

   The applicant claims that the IAA is unaware or ignored of the facts that when any failed asylum seeker returnes (Specially who is not holding passport of Bangladesh) to Bangladesh they are deported or leave the Country of Residence on a Temporary Passport. The information is stored in the Embassy or High Commission in a special sensitive classified area of record when they are provided a temporary passport to leave the country of present residence ..

   When the failed asylum seeker arrives at airport they are stopped and required a very harsh investigation by the Authorities. Most of the time they may face some sort of punishment because of several types non disclosures of information or possessing wrong identity documents .

   Applicant claims that the IAA unreasonably followed the decision of the Department without any further investigation because of time limit of making decision within a short period for SHEV applicants .

   The applicant claims the IAA ignored all of the facts and made decision on assumption .

   6. The applicant claims he would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return Bangladesh.

   (Errors in original)

1. At commencement of the hearing, the Court informed the applicant that this was a final hearing to determine whether the Authority’s decision was affected by a 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 was unlawful or unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision of the Authority would be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application of the applicant would be dismissed.

Submissions from the bar table

1. The Court explained that it would identify the evidence and then hear submissions from the applicant and then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing.

2. The applicant put oral submissions indicating that he had had a problem with the interpreter at the time of his entry interview. That was an issue expressly considered by both the delegate and the Authority. On the material before the Court, I am satisfied that the applicant had a real and meaningful opportunity to identify his claims at the time of the interview.

3. The applicant also raised orally that his parents were in India and maintained that he would not have come to Australia if he was not at risk and that he would be harmed if he returned. This was, in substance, an invitation by the applicant for the Court to engage in impermissible merits review. The Court does not have power to revisit the merits. The applicant also expressed concern in relation to his political affiliation. The applicant’s political affiliation was expressly addressed by both the delegate and the Authority. Both made adverse findings in relation to the applicant in that regard.

4. The adverse findings were open on the material before the Authority and cannot be said to lack an evident and intelligible justification. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration of Grounds

Grounds 1 - 4

1. In relation to Ground 1 and the applicant’s complaint that he was not given an opportunity to present arguments, this was not a hearing before an entity under Part 7 of the Act.

2. The procedures under Part 7AA are ones that, in substance, provide for the Authority to conduct a review upon the papers that is efficient and quick, subject to powers given to the Authority and obligations imposed in relation to new information. The Authority provided the applicant with an opportunity to put on submissions, and the applicant did so. The applicant also was provided with an opportunity to put on new information. It was open to the Authority to hold that the new information did not meet the criteria of exceptional circumstances identified in s.473DD.

3. The Authority was not required, in the circumstances of the present case, to invite the applicant to give new information, either in writing or at an interview. This is a case where the applicant was alive to the credibility issues that had been raised by the delegate, and those credibility issues were expressly the subject of submissions by the applicant’s representative in accordance with the opportunity provided by the Authority.

4. The invitation by the Authority to the applicant to put on submissions and the opportunity to provide new information, as well as the taking into account of the same, complied with the Authority’s obligations of procedural fairness under Part 7AA. On the face of the material before the Court, the Authority complied with its obligations in the conduct of the review under Part 7AA. The applicant had the opportunity to put on submissions and alleged new information, and the adverse finding by the Authority in respect of the new information that the Authority did not take into account was, for the reasons given, open.

5. The Authority took into account the submissions made on behalf of the applicant to the extent that they did not constitute new information. Taking into account s.473DA, the Authority was not required to call the applicant to give evidence in the conduct of the review. On the face of the material before the Court, the Authority engaged in a genuine consideration of the applicant’s claims and evidence, and the adverse findings in relation to the merits were open to the Authority.

6. The adverse findings by the Authority are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not be impartial and independent-minded in determination of the matter on the merits. Nothing in paragraphs 1 to 4 of the grounds in the amended application identify any jurisdictional error.

Ground 5

1. In relation to Ground 5, alleging that the Authority did not apply the correct test in respect to refugee status, the Authority correctly identified the relevant law, and the adverse findings are not a basis upon which to find that the Authority failed to apply the correct test.

2. Insofar as the particulars under Ground 5 referred to interpreting issues, that was a matter taken into account and the subject of express consideration by the Authority and the adverse finding by the Authority in that regard was open.

3. The weight to be given to the documents provided by the applicant to the Authority and to the Department in the initial application were a matter for the Authority to determine. It was open to the Authority to find that the applicant did not have a well-founded fear, which was a finding the Authority effectively made by holding the applicant was not a refugee and failed to meet the criteria under s.36(2)(a) of the Act.

4. Further, the inconsistencies in relation to the applicant’s statements at the time of his first application and the entry interview were rational, logical, reasonable, and material matters for the Authority to take into account. The applicant’s reference to where relatives are, including his mother or brother, are, in substance, an invitation to this Court to engage in impermissible merits review and do not identify any jurisdictional error.

5. The reference to the current situation was a matter for the Authority to determine at the time of the Authority’s decision. It is apparent that the Authority had regard to DFAT country information in the adverse findings made against the applicant.

6. On the face of the material before the Court there is no substance to the assertion that the Authority failed to have regard to all the information before the Authority. The Authority made findings in relation to the applicant that were open to the Authority. Ground 5 and the particulars thereunder, fail to identify any jurisdictional error.

Ground 6

1. In relation to Ground 6, alleging that the Authority failed to provide reasons in support of the adverse finding in respect of complementary protection, it is apparent from the Authority’s reasons that the Authority expressly considered, in an orthodox fashion, the applicant’s claims in relation to complementary protection. No jurisdictional error is made out by Ground 6.

Conclusion

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

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2017