CXZ16 v Minister for Immigration

[2017] FCCA 264

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXZ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 264

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.46A, 189, 473CA, 473CB, 476

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Minister for Immigration v SZJSS (2010) 243 CLR 164

NBKT v Minister for Immigration (2006) 156 FCR 419

WZAVW v Minister for Immigration [2016] FCA 760

Applicant: CXZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 468 of 2016

Judgment of: Judge Driver

Hearing date: 17, 22 February 2017

Delivered at: Sydney, via videolink to Perth

Delivered on: 22 February 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 4 October 2016 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 468 of 2016

CXZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 September 2016.  The authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  The particular class of visa involved is called a Safe Haven Enterprise Visa (SHEV).  Background facts concerning the applicant’s claims for protection and the decision of the authority on them are set in the Minister’s outline of submissions, filed on 10 February 2017.    

2. The applicant is a national of Bangladesh[1]. He entered Australia as an unauthorised maritime arrival on 21 February 2013 and was taken into immigration detention thereafter pursuant to s.189(3) of the Migration Act 1958 (Cth) (Migration Act).

   [1] Court Book (CB) 59

3. On 6 November 2015, an officer in the Minister’s Department (Department) wrote to the applicant to advise him that the Minister had exercised the power under s.46A(2) of the Migration Act to permit him to lodge a valid application for, relevantly, a SHEV[2].

   [2] CB 17-27

4. The applicant made an application for a SHEV on 23 April 2016[3]. In support of that application, the applicant made a statement on 23 April 2016 in which he set out his claims for protection[4]. The applicant claimed to fear harm as a result of his political opinion. He claimed that he had been actively involved with the Bangladesh National Party (BNP) in his local area and that, during the time of the caretaker government, he was beaten by Awami League supporters on five or six occasions[5]. The applicant claimed that he moved to a different area but that harassment from Awami League supporters continued, and that he had been falsely accused, and charged, with being involved in a bomb blast that took place on 10 October 2012[6].

   [3] CB 46-85

   [4] CB 86-91

   [5] CB 86-87 [11]-[15]

   [6] CB 88-90 [19]-[27]

5. On 28 April 2016, the applicant participated in an interview with the delegate[7].

   [7] CB 113-118 and 151 [9]

6. On 15 July 2016, the delegate made a decision to refuse to grant a SHEV to the applicant[8].

   [8] CB 149-170

Merits review

1. On 20 July 2016, the Minister referred the delegate’s decision to the Authority pursuant to s.473CA of the Migration Act[9].  In a letter of the same date, the Authority wrote to the applicant, relevantly advising him that he could provide new information in support of his case, but that the Authority could only consider such information in limited circumstances[10].

   [9] CB 172

   [10] CB 172-184

2. On 29 July 2016, the applicant provided the Authority with a submission[11].

   [11] CB 185-186

3. On 2 September 2016, the Authority affirmed the delegate’s decision[12].

   [12] CB 191-206

4. The Authority commenced its reasons by stating that it had regard to the material which the Secretary of the Department provided to it pursuant to s.473CB as well as the submissions provided by the applicant which it did not consider to be “new information”[13].

   [13] CB 192 [3]-[4]

5. The Authority did not accept the applicant’s explanations as to why he did not mention his claimed BNP involvement, problems with the Awami League or the charges against him at his entry interview[14].  The Authority further found the applicant’s evidence in relation to his BNP involvement to be vague and lacking in detail and his claims in relation to previous harm from the Awami League to be lacking in detail[15]. Accordingly, the Authority did not accept that the applicant was ever harmed or threatened by the Awami League, or anyone, on account of his political involvement or that he was politically active with the BNP[16]. 

   [14] CB 196 [20]

   [15] CB 197[22]-[23]

   [16] CB 197 [23]

6. The Authority considered the documentary evidence submitted in relation to the charges against the applicant as well as the letter in relation to his purported political involvement[17]. The Authority, however, considered that it was significant that the applicant could not recall the claimed charges against him and made no mention of the claim at entry interview[18].  Ultimately, the Authority did not accept that the applicant had been accused of the crimes claimed or that any charges, false or real, had been filed against him[19].

   [17] CB 198 [27]-[28]

   [18] CB 198 [29]

   [19] CB 198 [29]

7. Given that the Authority did not accept those claims, the Authority further did not accept that the applicant went into hiding or that people came looking for him, ransacked his home or threatened his parents[20].

   [20] CB 198 [30]

8. The Authority considered the applicant’s risk of harm from generalised political violence.  However, based on country information and its findings that the applicant had not had any political involvement, it did not accept that the applicant faced a real chance of serious harm as a result of political rivalry between the BNP and the Awami League[21].

   [21] CB 199 [33]

9. The Authority accepted that the applicant left Bangladesh illegally and that the Bangladeshi authorities were aware of that fact, as well as the applicant’s detention and claim for asylum. However, the Authority found that the authorities would not be aware of the specific asylum claims made[22]. The Authority found that the applicant did not face a real chance of being imprisoned, fined or otherwise harmed upon his return to Bangladesh as a result of his illegal departure from that country or return to it as a failed asylum seeker[23].

   [22] CB 199 [35]

   [23] CB 200 [38]

10. Accordingly, the Authority found that the applicant did not meet the refugee criterion for the grant of a SHEV[24].

    [24] CB 200 [41]

11. From [42]-[50][25], the Authority considered the applicant’s claims for complementary protection.  The Authority found, for the same reasons, that the applicant would not face a real risk of significant harm in the reasonably foreseeable future if he were returned to Bangladesh[26].

    [25] CB 200-202

    [26] CB 202 [50]

The present proceedings

1. These proceedings began with a show cause application filed on 7 October 2016.  There are three unparticularised grounds in that application:

   1. The assessor has made jurisdictional errors in making decision.

   2. The assessor failed to properly comply consider all of my claims.

   3. The assessor has made wrong conclusions in identifying genuine documents. (errors in original)

2. The application is supported by an affidavit filed with it, which identified the applicant and annexed the Authority’s decision, as well as the decision of the Minister’s delegate.  There were several other documents attached to the affidavit which appear to reproduce documents included in the court book which I also received. 

3. Both the applicant and the Minister prepared pre-hearing submissions in accordance with procedural orders made to prepare the case for hearing.  The applicant’s submissions take issue with the Authority’s reasoning process and its factual findings.  The applicant recognises that he suffered credibility problems before the Authority and seeks to explain those problems. 

4. The applicant’s oral submissions reinforced the impression that he is concerned with the outcome of the review and the reasoning that led to the outcome.  The applicant’s written and oral submissions seek to engage the Court with the merits of his claims for protection, which are beyond the scope of this proceeding. 

5. Attached to the applicant’s written submissions are a number of documents.  The applicant had asserted from the bar table that those documents had been provided to the Minister’s Department.  He appeared to retreat from that position during the course of the Minister’s oral submissions.   The first document, headed “Rights Group Urges Bangladesh to Stop Kneecapping Detainees”, post-dated the Authority decision.  The remaining documents appear to be news articles downloaded from the internet, and are general in nature, concerning political violence in Bangladesh.

6. There is no evidence that any of those documents were available to the Authority.  Even if they were, given their general nature it is doubtful that they could have had any impact on the assessment of the applicant’s particular circumstances.  I conclude that the documents do not point to any jurisdictional error by the Authority. 

7. The grounds of review advanced by the applicant convey no real meaning in the absence of particulars.

8. As is noted in the Minister’s submissions, to the extent that in those grounds the applicant seeks review of the decision of the Minister’s delegate, the Court lacks jurisdiction. In that connection, I have regard to ss.476(2)(a) and 476(4)(c) of the Migration Act 1958 (Cth). In other respects, I agree with the Minister’s submissions in relation to the grounds of review.

9. Ground 1 is no more than an unparticularised assertion that the Authority made a mistake. Accordingly, the ground does not, and cannot, of itself, constitute jurisdictional error[27].

   [27] WZAVW v Minister for Immigration [2016] FCA 760 at [35] per Gilmour J

10. Ground 2 contends that the Authority failed to properly consider all of the applicant’s claims.  Two arguments may be made in response to this contention.  First, the Authority was under no obligation to “refer to every piece of evidence and every contention made by an applicant” in its decision[28].

    [28] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [46] per French, Sackville and Hely JJ

11. Secondly, in any event, the Authority considered each of the claims raised by the applicant and made findings in relation to those claims that were open to it.

12. Ground 3 contends that the Authority “made wrong conclusions in identifying genuine documents”. This appears to be a complaint in relation to the weight placed on the documentary evidence submitted by the applicant.

13. The Authority specifically considered the documentary evidence submitted by the applicant[29].  However, it placed no weight on those documents given its significant concerns with the applicant’s evidence in circumstances where:

    a)they were inconsistent with the applicant’s claims in relation to the bombing accusation[30];

    b)they were inconsistent with the applicant’s claimed political involvement[31];

    c)they post-dated the applicant’s departure from Bangladesh[32];

    d)the applicant had made no mention of the claims at his entry interview[33].

    [29] CB 198 [27]-[28]

    [30] CB 198 [27]

    [31] CB 198 [28]

    [32] CB 198 [28]

    [33] CB 198 [29]

14. In substance, this ground is an invitation to the Court to engage in merits review. The Authority’s findings were open for the reasons it gave and, in any event, the weight to be given to the evidence is a matter for the Authority and cannot be challenged in judicial review.[34]

    [34] NBKT v Minister for Immigration (2006) 156 FCR 419 at 440 [81] per Young J (with whom Gyles J and Stone J agreed); Minister for Immigration v SZJSS (2010) 243 CLR 164 at 176 [32]-[33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

15. I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error.  I will, therefore, order that the application filed on 9 November 2016, be dismissed.

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.

17. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 27 February 2017