Cuo17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 2454
•3 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUO17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2020] FCCA 2454 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority failed to give proper, genuine and realistic consideration to the applicant’s claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) s.476 |
| Cases cited: CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 (23 December 2019) |
| Applicant: | CUO17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1994 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 5 August 2020 |
| Date of Last Submission: | 5 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Paul Bodisco |
| Solicitors for the Applicant: | ABU Legal |
| Counsel for the Respondents: | Mr Tim Reilly |
| Solicitors for the Respondents: | Mills Oakley |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1994 of 2017
| CUO17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority (“the Authority”), dated 23 May 2017 affirming a decision of a delegate of the first respondent (“the Delegate”) made on 7 February 2017 refusing the applicant a Safe Haven Enterprise Protection (Class XE, Subclass 790) visa (“SHEV”).
The applicant is a citizen of Bangladesh who arrived in Australia on 11 April 2013 as an unauthorised maritime arrival.
On 16 November 2016, the applicant applied for a SHEV. On 10 January 2017, the applicant attended an interview with the Delegate.
On 7 February 2017, the Delegate refused to grant the applicant a SHEV.
On 10 February 2017, the matter was referred to the Authority.
On 23 May 2017, the Authority affirmed the decision under review.
On 26 June 2017, the applicant filed an application with this Court for judicial review of the decision of the Authority.
On 27 September 2017, the applicant was given leave to file and serve an Amended Application together with any further evidence by way of affidavit by 9 November 2017 and the matter was set down for final hearing on 18 March 2020 before me.
Ultimately, the matter was relisted for hearing before me on 23 June 2020. On that occasion, the applicant was represented by Mr Paul Bodisco of counsel. Mr Bodisco sought leave to file a Further Amended Application and was granted that leave. The matter was then set down for hearing before me on 5 August 2020.
At that hearing, the applicant was again represented by Mr Bodisco of counsel and the first respondent was represented by Mr Tim Reilly of counsel. Mr Bodisco confirmed that the applicant relied on a Further Amended Application, but titled “Amended Application” and filed on 20 May 2020. That Further Amended Application identified the sole ground relied upon as follows:
“The IAA failed to give proper, genuine and realistic consideration to the applicant’s claim.”
Counsel for the applicant confirmed that was the only ground now relied upon by the applicant and that all earlier grounds and applications were withdrawn.
The applicant’s ground was not supported by particulars. However, in written submissions, counsel for the applicant identified the following relevant matters relied upon:
“4. In April 2013, some nine days after his arrival in Australia, the applicant participated in a Department interview. Asked why he had departed Bangladesh he said he had political issues, he used to work for a shop and was doing his job and a political party said you cannot sell at this shop. His boss said they could not open the shop and so he could not pay the applicant so the applicant went back to his home and work again and he collected money and departed Bangladesh. Asked if the primary reason he departed Bangladesh was work problems he said there were work problems and also there were political groups harming themselves and fighting. Asked if anything happened in particular he said there was a strike and that the opposition group came into the shop and tried to hurt him. Asked if he, or any members of his family, had been involved in any political groups he answered no. asked if he, any members of his family, had been involved in any activities or protests against the government he answered no. Asked what would happen to him if he returned to Bangladesh he said that the political party would kill him. Asked why this would happen he said that there was fighting and that there was no time limit to when they would come and he feared wat they would do if he went back to his job. At his January 2017 TPV interview this information was put to the applicant along with the concern that he had said nothing, at his April 2013 entry interview, about his family members being leaders in, or members of, JI nor had he said that he was being pursued as consequence of his being perceived to be a leader of JI. In response the applicant said that he was feeling very unwell at the entry interview as consequence of the sea voyage which had brought him to Australia, that he was in a new country and fearful of telling the Australian authorities about what had happened to him because they might think him to be a criminal, that he and he entry interview interpreter did not properly understand each other because the interpreter was Rohingya, and that at the time he (the applicant) was having flashbacks to memories that he was trying to forget.”
In earlier written submissions, the first respondent set out a summary of the applicant’s claims, the decision of the Delegate and the decision of the Authority as follows:
“6. The applicant is a citizen of Bangladesh who arrived in Australia on 11 April 2013 as an unauthorised maritime arrival.
7. On 16 November 2016, the applicant applied for a SHEV (CB 29-96), and set out his written claims in a statutory declaration dated 9 November 2016 (CB 76-83). He claimed that: a. He was targeted by the Awami League (AL) because of his family’s support for the Jamaat-e-Islami (JI) party, and he was also targeted by the Bangladesh National Party (BNP).
b. His oldest brother and his uncle were active members of JI and held important positions, but the applicant was not a member.
c. He worked in a grocery store from 2008 to 2012 and people from different political parties demanded donation monies from the shop. In September 2011, the BNP imposed a strike/closure on all shops in Jessore. He was asked by his boss to open the store during the strike and was attacked by JI and BNP supporters. He returned to his village after the attack but AL people followed him back to Jatpur and continued to search for him.
8. On 23 December 2016, the applicant was invited to attend an interview with the delegate scheduled for 10 January 2017 (CB 108-118), which he attended (CB 125)
9. On 7 February 2017, the delegate refused to grant the applicant the SHEV (CB 121-137). Given the applicant’s vague and inconsistent responses about his claims, the delegate did not accept that the applicant was involved with JI or that his brother and uncle were JI members (CB 126-127). On the basis of adverse credibility findings, the delegate also did not accept the applicant’s claims regarding the strike in Jessore (CB 127-128). The delegate accepted the applicant was a Muslim from Bangladesh and would be failed asylum seeker on return, but rejected the remainder of his factual claims for protection (CB 132).
The Authority
11. On 28 February 2017, the applicant’s representative provided a submission to the Authority (IAA submission) with various supporting documents (CB 155-186).
12. On 9 March 2017, the Authority wrote to the applicant’s representative to confirm that much of the IAA submission did not comply with the Practice Direction, particularly because copies of the country information reports and media articles referred to in the IAA submission had not been provided (CB 187).
13. On 16 March 2017, the applicant’s representative provided various documents and news articles to the Authority (CB 188-218).
14. On 23 May 2017, the Authority affirmed the decision under review (CB 219-236).
The Authority’s decision
15. To the extent that the IAA submission contained arguments, the Authority found this was not new information and considered it (CB 223, [2]).
16. The Authority assessed the country information reports, a letter purportedly from a BNP (the BNP letter) official dated 19 July 2016 and a further bundle of documents provided to it and, in relation to each of these documents, found this was new information but that the requirements of s 477DD(b) of the Act was not met (CB 223,[4]-[6]).
17. Specifically, the Authority found the BNP letter stated the applicant was an active member of the BNP but this had never been the applicant’s claim. It found that although the letter was dated 19 July 2016, it was never provided to the delegate prior to her decision of 7 February 2017. The Authority found no explicit reason was provided as to why the BNP letter could not have been provided before the delegate’s decision or why it should be considered credible personal information (CB 233, [5]).
18. Despite retaining concerns because of the fraudulent identity documents that had been submitted, the Authority was willing to accept that the applicant was a national of Bangladesh (CB 225-226, [10]).
19. The Authority had serious concerns about the credibility of the applicant’s claims relating to his association with the JI party. The Authority found that although the applicant’s claim that his brothers and uncle were senior JI leaders was at the heart of his claim for protection, he was unable to explain what positions his brothers and uncle held in the JI party. The applicant had also claimed that he attended political rallies but was not able to recall when and where these were held. The Authority also found that the applicant’s vague and unconvincing evidence regarding the specific positions that his relatives held in the JI party raised serious doubts about the credibility of his claims (CB 226, [11]).
20. The Authority observed that at his entry interview, the applicant said that neither he nor his family were involved in any political groups and had instead claimed that he had “work problems” and that the political groups were harming themselves and fighting. When this information was put to him at the delegate’s interview in January 2017, the applicant claimed he was unwell as a consequence of the sea voyage, he was fearful of telling his story and he had difficulty understanding the interpreter (CB 226, [15]). The Authority accepted that a person might be reluctant to speak about matters like threats of violence because they involved painful memories or a person might fail to mention various matters as a consequence of being unwell but was not persuaded that the applicant was affected by communication problems or illness. The Authority also expressly noted documents from members of the community in Australia attesting to the applicant’s honesty and good character but found this could not overcome the unconvincing documentary evidence provided in support of his claims (CB 228, [16]).
21. The Authority found the applicant had consistently claimed to have been threatened by opposition political activists during the course of a strike and was willing to accept that in September 2011 he was working at a store whose manager had decided to trade at the time of a strike and was threatened by activities of the BNP. However, the Authority did not accept that further threats were made against the applicant or that he was living in hiding. Nor did it accept that there was any ongoing interest in the applicant by persons belonging to the AL, the BNP, the JI party or the police (CB 229, [17]). This was on the basis of its preceding credibility concerns and adverse findings.
22. The Authority did not accept that the applicant was ever associated with or perceived to be a member of the JI party, or that he was subjected to extortion demands. It was not satisfied that the applicant would face a real chance of harm from the JI party or the BNP for any reason (CB 229, [18]).
23. The Authority found that the applicant had departed Bangladesh illegally but noted DFAT’s advice that the Bangladesh Emigration Ordinance Act was not enforced and returnees including asylum seekers were not subjected to adverse attention. The Authority was satisfied that the applicant would not be harmed as a result of having lived in Australia and/or as a consequence of having departed Bangladesh unlawfully (CB 230, [19]).
24. The Authority found that as a member of the majority ethnic Bengali Sunni Muslim population, the applicant would not suffer harm as a consequence of generalised political and criminal violence if he returned to Bangladesh (CB 230, [20]).
25. Given the applicant’s accepted circumstances and available country information about political activity in Bangladesh, the Authority was not satisfied that the applicant faced a real chance of harm of any kind for any reason upon return to Bangladesh. The Authority was therefore not satisfied that the applicant faced a real chance of serious harm upon return to Bangladesh and found that s 36(2)(a) was not met (CB 230, [21]-[22]).
26. Having found that the applicant did not face a real chance of harm of any kind for any reason upon return to Bangladesh, the Authority was also not satisfied that he would face a real risk of harm of any kind upon return to Bangladesh. The Authority found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Bangladesh, there was a real risk that the applicant would suffer significant harm, as required by s 36(2)(aa) of the Act (CB 231, [25]-[26]).
Counsel for the applicant relied on the following findings by the Authority in support of the ground of review:
“16. Given JI’s reputation for engaging in political violence a person might be wary of disclosing his circumstances to the Australian authorities if he was accused of being a JI leader and was being sought by not only JI’s political rivals but by the Bangladesh police. A person might also be reluctant to speak about matters like threats of violence because they involved painful memories. A person might fail to mention various matters as a consequence of being unwell, and a person’s statements might not be properly communicated in the absence of an interpreter speaking the applicant’s language. However, in this case the entry interview transcript records that the interpreter did speak Bengali. Given that matters such as the applicant’s employment, residency history and family composition were recorded, I am not persuaded that the applicant was affected by communication problems or illness at the entry interview”.
In support, Mr Bodisco referred the Court to CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 (23 December 2019) and other authorities referred therein, in support of the following accepted propositions:
i)The decision maker must approach the statutory task with a mind open to persuasion and able or willing to evaluate all the material fairly.
ii)A decision-maker must view inconsistencies, vagueness and omissions in the context of imperfections in memory that naturally occur over time or due to stress or language difficulties due to reticence to be forthcoming with people or bodies perceived to be in authority.
iii)A failure to mention a claim subsequently made to a decision-maker may be relevant to credibility but may also be reasonably explicable.
iv)The decision-maker must be conscious of the particular difficulties facing asylum seekers in giving accounts of why they fear persecution and that they may expect an interview or review process to provide an opportunity for them to elaborate on, or explain, the narratives they have previously given.
v)There are many factors that may present with the appearance of poor credibility, including mistrust of authority, defects in perception and memory, cultural differences, the effects of fear, the effects of physical and psychological trauma, communication and translation difficulties, poor experience elsewhere with governmental officials, and the belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear.
vi)The process of decision making takes place in an inherently imperfect environment; it is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.
vii)An explanation for having given different accounts must be seriously and properly considered.
viii)The Authority’s decision must be read beneficially without a keen eye for error.
Counsel for the applicant submitted that in the case before this court the Authority had no regard to the fact that the interpreter spoke a different dialect; nor did it have regard to the explanation provided by the applicant regarding illness.
The applicant’s complaint in relation to the different dialect of the interpreter, is not supported by the evidence before this Court. The Authority noted that the Entry Interview transcript noted that the interpreter did speak Bengali. Further, the Authority found that the applicant’s employment history, residency history and family composition were all recorded and it was not persuaded that the applicant was affected by communication problems or illness at the Entry Interview.
The Authority stated as follows:
“15…. At his January 2017 TPV interview this information was put to the applicant along with the concern that he had said nothing, at his April 2013 entry interview, about his family members being leaders in, or members of, JI nor had he said that he was being pursued as consequence of his being perceived to be a leader of JI. In response the applicant said that he was feeling very unwell at the entry interview as consequence of the sea voyage which had brought him to Australia, that he was in a new country and fearful of telling the Australian authorities about what had happened to him because they might think him to be a criminal, that he and the entry interview interpreter did not properly understand each other because the interpreter was Rohingya, and that at the time he (the applicant) was having flashbacks to memories that he was trying to forget.
16. … Moreover, the applicant’s claim that, on the one hand, he did not mention these things because he was fearful of doing so, and/or because they were too painful to speak about and/or because he was not well, is at odds with his claim that his entry interview statements were not properly interpreted (ie: that he did make claims of this kind but that these were not properly interpreted). The applicant has provided a number of documents from members of the community in Australia attesting to his honesty and good character. However, such letters of support do not overcome the doubts raised by the vague and unconvincing evidence provided by the applicant regarding his brother and uncles’ involvement in JI, his own attendance of JI rallies, and the unconvincing documentary evidence he has provided to support his claim to have been the focus of ongoing adverse attention from the AL and/or from the Jihadul Islam Party or some other group making extortion demands of him. I am not satisfied, and I do not accept, that the applicant’s brother and uncle were ever associated with JI or that the applicant ever attended any JI rallies, or that he has ever supported JI or been associated with JI in any way, or that he has any wish to support JI. I do not accept that demands for money have been made to the applicant or that he and/or his family members have been the focus of ongoing threats and/or extortion demands, or that they have been of interest to the Bangladesh police”.
A fair reading of the Authority’s decision record makes clear that the Authority did not fail to have regard to the applicant’s explanation for not raising claims about Jamaat e-Islami at the Entry Interview.
The Authority noted that the applicant’s explanation was that he and the interviewer did not understand each other because the interpreter was Rohinga and the applicant was feeling unwell. As is clear from the Authority’s reasons as cited above, the Authority considered and rejected the applicant’s claim that there were communication issues at the Entry Interview. The Authority also rejected that the applicant was affected by illness for the reasons cited above.
The Authority’s findings were open to it on the evidence and material before it and for the reasons it gave. Its findings were based on rational grounds and arrived at after considering the factors that were probative of the issues before it. A fair reading of the Authority’s decision made clear that it had regard to the claims raised by the applicant by way of his explanation for the inconsistencies found to exist by the Authority. However, those explanations were not accepted by the Authority.
It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
The Authority’s findings were not tainted by any failure to afford procedural fairness; or reaching a finding without a probative basis; or unreasonableness; and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at 83 per Griffiths, Perry, Bromwich JJ).
In the circumstances, the Authority did not fail to give proper, genuine and realistic consideration to the applicant’s claim. The Authority engaged in an active intellectual process as explained in the relevant authorities as referred to in the submissions of both counsel and in particular Tickner v Chapman (1995) 57 FCR 451 at 476-477 per Burchett J, at 495-496 per Keifel J (as her Honour then was), at 462 per Black CJ.
Further, a fair reading of the Authority’s decision record makes clear that the Authority had other concerns about the applicant’s credibility beyond the inconsistencies arising from the Entry Interview. The Authority detailed these concerns and inconsistencies in its decision record. They include the applicant’s “vague and unconvincing evidence” regarding specific positions in JI held by the applicant’s relatives; the unsatisfactory nature of “threat letters” in light of the applicant’s inconsistent and unconvincing evidence about those matters; the Authority’s lack of satisfaction that the applicant would be denied the likelihood to earn a living if he were returned to Bangladesh; the Authority’s finding that there is no ongoing interest in the applicant; the fact DFAT is not aware of any cases where authorities have enforced provisions upon persons departing Bangladesh illegally; most returnees, including asylum seekers, are not subject to adverse attention regardless of whether they have returned voluntarily or involuntarily; the Authority’s finding that the applicant is not of adverse interest to the Bangladesh police and, the country information before it that suggested a person with the applicant’s profile is not at risk of serious harm if returned to Bangladesh.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant and had regard to all material provided in support. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 03 September 2020
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