CRJ17 v Minister for Immigration
[2017] FCCA 2725
•8 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRJ17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2725 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – adverse credibility findings were open on the material before the Authority – the Authority complied with its statutory obligations – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CD, 473DD, 476 |
| Applicant: | CRJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 324 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 8 November 2017 |
| Date of Last Submission: | 8 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2017 |
REPRESENTATION
The Applicant appeared by video link.
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 324 of 2017
| CRJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 Act1958 (“the Act”) in respect of the decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA of the Act on 12 May 2017 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant arrived in Australia on Christmas Island as an unauthorised maritime arrival on 30 January 2013. The applicant claimed to be a stateless person who was born in Burma and lived most of his life in Bangladesh.
On 26 April 2016, the applicant lodged an application for a Safe Haven Enterprise visa. The applicant was invited to attend an interview with the delegate on 22 August 2016. On 14 November 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa. The delegate found the applicant was a citizen of Bangladesh.
The Authority’s decision
By letter dated 24 November 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter identified that there were only limited circumstances in which the Authority could receive new information. The letter attached a fact sheet and practice direction giving the applicant an opportunity to put on new information and to put on submissions. The applicant provided further information and submissions, which were referred to in the Authority’s reasons. The Authority’s reasons identify the background to the visa application and the applicant claiming to be a stateless ethnic Rohingya born in Burma who had lived most of his life in Bangladesh.
The Authority identified having regard to the material referred under s 473CD of the Act. The Authority referred to the submissions that were provided on 5 December 2016 and referred to a letter from the Malaysian Rohingya Society which the Authority was not satisfied was before the delegate. The Authority was satisfied that the material provided under the letter dated 5 December 2016 was before the delegate and accordingly took the same into account.
The Authority also referred to material provided on 15 December 2016, being a letter of 11 December 2012. The Authority was not satisfied that the letter could be considered credible personal information. The Authority was not satisfied that the letter could not have been obtained and provided to the delegate prior to the delegate’s decision. The Authority was not satisfied that the letter met the requirements of s 473DD of the Act.
The Authority identified the applicant’s claims and that he feared if he returns to Burma he will be killed by the Burmese government because he is an ethnic Rohingya and that he fears if he returns to Bangladesh he will be placed in gaol or deported to Burma because he does not have a right to reside in Bangladesh.
Consideration of Refugee Convention criteria
The Authority identified the relevant law and turned to the applicant’s claim of being a stateless ethnic Rohingya. The Authority referred to country information identifying many Rohingyas informally using fraudulent identity documents such as national identity cards. The Authority made reference to the applicant’s claim of never having obtained an identity documentation while living in Bangladesh.
The Authority referred in detail to the applicant’s claims and what occurred at the Safe Haven Enterprise visa interview and what was asserted in the Safe Haven Enterprise visa application. The Authority provided detailed reasons in relation to the applicant having provided inconsistent evidence in relation to his contact with his wife’s parents.
The Authority referred to the applicant claiming in April 2007 he travelled to Malaysia using a passport which was fraudulently altered by inserting his photograph. The Authority did not accept that the applicant had been detained travelling to Milan. The Authority accepted that the applicant flew to Malaysia in 2007 and remained there until he departed for Australia in 2012. The Authority identified the documents provided by the applicant in support of these claims. The Authority referred to the letter which reports to have been issued by four committee members of the Gufuphalong refugee camp. The Authority referred in detail to the content of the letter.
The Authority provided reasons in support of the ease with which documents of this kind can be fraudulently obtained and gave no weight to the evidence in relation to the applicant’s claims. The Authority referred to a letter of 7 June 2016 in which the applicant claimed that he is a Muslim, and the Authority accepted that assertion.
The Authority did not accept that the applicant was ever recognised as a refugee or even that his claim to be from Myanmar was accepted by the UNHCR as credible. The Authority accepted that the applicant registered with the UNHCR in Malaysia and that he claimed to be an asylum seeker from Myanmar. The Authority referred to a further document provided, issued on 21 August 2010. The Authority referred to the overall doubts about the documentation provided by the applicant with regard to his claim to be a stateless Rohingya and the ease with which such documents can be obtained fraudulently. The Authority accordingly, gave no weight to that document as evidence of the applicant’s claim to be a stateless Rohingya from Burma.
The Authority referred to further material provided on 9 September 2016 and the Authority took into account the overall doubts about the evidence provided by the applicant as to his claim to be a stateless Rohingya and in those circumstances, decided not to obtain further information from the alleged sources provided on 9 September 2016 and did not give any weight to the applicant’s invitation to contact these persons as evidence of his claim to be a stateless Rohingya.
The Authority was not satisfied and did not accept the applicant as a stateless Rohingya from Burma and the Authority found the applicant is an ethnic Bengali citizen of Bangladesh from Chittagong. The Authority rejected the applicant’s claims to have departed Bangladesh on a fraudulent passport. The Authority found the applicant departed Bangladesh lawfully on his own genuine Bangladesh passport.
The Authority was not satisfied the applicant would face a real chance of harm on the basis of being stateless or Rohingya if he were to return to Bangladesh. The Authority after taking into account the whole of the applicant’s evidence and the situation in Bangladesh and finding that the applicant was a Bangladeshi citizen, as well as taking into account the Sunni Muslim ethnic Bengali population and that he left the country legally using his own passport, was not satisfied the applicant would face a real chance of harm of any kind for any reason if he returned to Bangladesh. The Authority was not satisfied the applicant faced a real chance of serious harm.
The Authority found the applicant failed to meet the definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.
Consideration of complementary protection criteria
The Authority was not satisfied the applicant faced a real chance of harm of any kind for any reason if he returned to Bangladesh. The Authority accordingly was not satisfied that the applicant faced a real risk of harm of any kind for any reason if he returned to Bangladesh. The Authority was not satisfied that the applicant would face a real risk of significant harm if he returned to Bangladesh.
The Authority found 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 that the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act.
Before this Court
On 13 September 2017, a Registrar 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.
On the day of the hearing, the applicant produced a number of certificates and documents which the Court admitted into evidence subject to relevance. The majority of those documents were not before the Authority and were tendered on the basis of being relevant to the applicant’s claims. Material to support the applicant’s claims that was not before the Authority cannot establish any jurisdictional error and to the extent that the documents were not in evidence before the Authority, the Court finds the same are not relevant.
The applicant also handed up to the Court a two page written submission in which the applicant maintained his claim of being a stateless Rohingya and that the decision was unfair and that he was unhappy with the decision and identifying the applicant’s background.
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 was unlawful or unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair the decision will 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 applicant’s application will be dismissed with costs.
The Court explained it would have identified the evidence, then hear submissions from the applicant, 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 proceedings as explained by the Court.
Applicant’s submissions from the bar table
From the bar table, the applicant maintained that he was a stateless Rohingya and that the Authority had made errors in finding otherwise. The applicant made reference to the delegate’s finding in relation to his travel to India which the Authority did not accept. The applicant asserted that his life would be in danger if returned to Bangladesh. The applicant put submissions disagreeing with the adverse findings.
This Court does not have power to revisit the merits. The Court cannot make fresh findings of fact in respect to the applicant’s claims. Nothing said by the applicant from the bar table identified any jurisdictional error.
The applicant provided further documents purporting to identify a conversion to Christianity and divorce from his wife, alleging fear from her family. Those were not claims advanced before the Authority and cannot give rise to any alleged jurisdictional error by the Authority. The applicant’s written submissions invite impermissible merits review. Nothing in the applicant’s written submissions establish any jurisdictional error.
The grounds in the application are as follows:
1. The Authority said I am Bangladeshi but I am a citizen of Burma.
2. I am a stateless person.
3. The Authority has massively understood the gravity of my situations.
Consideration
Ground 1 in substance is a repetition of the applicant’s claim. The Authority provided orthodox reasons in support of the adverse credibility findings. Those adverse credibility findings were open on the material before 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 Authority complied with the requirements of procedural fairness in the conduct of the review by sending to the applicant the letter inviting the applicant to put on submissions and new information and in the evaluation of that new information and submissions as identified in the Authority’s reasons. In the present case, there is no basis for inferring that the Authority failed to take into account the whole of the provisions in s 473DD of the Act. Further, in the present case, there is no basis for finding that the Authority adopted an erroneously narrow meaning of exceptional circumstances in applying s 473DD of the Act. Ground 1 of the application reflects a disagreement with the adverse findings and does not identify any jurisdictional error.
In relation to ground 2, there is no misunderstanding by the Authority of the applicant’s claims and evidence that is made out. Whilst the applicant disagreed with the findings by the Authority, the Court is not satisfied that the Authority misunderstood the applicant’s claims. The adverse findings in relation to the applicant’s credit were open to the Authority for the reasons it gave. No jurisdictional error is made out by ground 2.
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 16 November 2017
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