CYN18 v Minister for Home Affairs

[2019] FCCA 232

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYN18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 232

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth)

Applicant: CYN18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 553 of 2018

Judgment of: Judge Vasta

Hearing date: 30 January 2019

Date of Last Submission: 30 January 2019

Delivered at: Brisbane

Delivered on: 30 January 2019

REPRESENTATION

Applicant appearing in person

Solicitors for the Respondent: Minter Ellison

ORDERS

1. That the Applications filed on 7 June 2018 and 10 October 2018 are dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 553 of 2018

CYN18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 16 May 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant CYN18 a protection visa.  On 7 June 2018, CYN18 filed the present application for review. 

2. The facts surrounding this matter are in somewhat short compass.  The Applicant claims that he was born in Burma to Bangladeshi nationals and is stateless.  He says he does not have any identity documents because he is a stateless person from Burma.  He said that whilst living in Burma, he and his family suffered various forms of mistreatment.

3. In 1991, when he was 10 years of age, he said that two military men assaulted his eldest sister and when he and his father attempted to intervene, he and his father were both seriously injured.  Following this, the whole family crossed the border from Burma into Bangladesh where the Applicant continued to be stateless and to suffer mistreatment. 

4. He said that because he was in Bangladesh illegally, he was not entitled to identification documents there either.  He did not have freedom of movement.  He found it difficult to find employment and he was exploited, underpaid and beaten.  He said that sometimes people would steal his shopping when he was on the way home from the market.  He said he could not access any facilities. 

5. He said that he had heard that Bangladeshis and Rohingyas were going to Malaysia where they could earn money to send back to Bangladesh to support their family members.  He decided to do this also.  In 2001, he left Bangladesh for Malaysia where he lived and he worked unlawfully. 

6. He said that in Malaysia, he was exploited and underpaid and he also had to bribe police to avoid being jailed.  He claims that he heard that Australia was a good country and people were given asylum there and so, in 2013, he departed Malaysia for Australia. 

7. He said that if he is forced to return to Burma, they will not accept him because he will be arrested and persecuted because he is a Barua Buddhist and stateless and the police will inflict harm upon him because he has disclosed what is happening in Burma to the Australian authorities and the Australian people. 

8. He fears that if he was forced to returned to Bangladesh, he would be subjected to serious harm and this will be worse than before because he had left the country and now returned, and because he had been abroad, if people reported him to the police, they would arrest him and punish him. He fears that this harm would be inflicted upon him by Bangladeshis, the police and local authorities because he is a Barua Buddhist and he is not a Bangladeshi citizen and he is stateless, and he would be an illegal immigrant. 

9. The IAA looked at all these claims and went through them in what seems to me in a very thorough manner.  Not to put too fine a point on it, the IAA had serious doubts as to the Applicant’s credibility. 

10. The Applicant was able to produce to the department, identification documents for his other family members; that is, his parents, his wife, his children and his siblings, all showing that they were nationals of Bangladesh.  However, he said that, for certain reasons, he was not able to have similar documents establishing his identity. 

11. The problem with some of those documents is that they contradict some of the claims that had been made in both his written application and what he said at the SHEV interview.  For example, he said that when the family crossed the border from Burma to Bangladesh, that his brother went missing during that crossing.  In the other member’s table, it lists his brother as being a citizen of Bangladesh and having been born in Bangladesh on 17 January 1990.  The missing certificate for his brother showed that he went missing in 1994 and not in 1991 as he had claimed.

12. Significantly, that certificate also details the brother’s registration number which would appear to indicate that his birth was registered with the Bangladesh authorities as per the other family member’s staple. 

13. Therefore, if the brother was born in, and a citizen of, Bangladesh, it makes it unlikely that he could have been born in Burma because the Applicant said that they were still living in Burma at that time.  But it also mentions another brother that was born on 20 April 1982 and it notes that he was born in Bangladesh.  That undercuts the claim that the Applicant made that the family were in Burma during that time. 

14. That then seems to again put doubt on the Applicant’s story that his brother went missing in 1991 and that the reason they left was that they had a confrontation with Burmese military men prior to the departure. It would seem, if one looks at those documents, the family was in Bangladesh in 1982 and so could not have had a confrontation with Burmese military men in 1990. 

15. The Applicant showed the delegate, in the SHEV interview, the scars on his hands that were, he said, from this particular incident between him, his father and the Burmese military.   The IAA said that they accepted that the Applicant had scars on his hands, but could not say that they were persuaded that the hands were injured in the circumstances that he claims. 

16. Having come to that conclusion, there were other conclusions that were open on those papers, especially to do with other family members. 

17. The IAA also had some doubt about his language capabilities.  The IAA noted that in the SHEV interview, the Applicant had requested a Rohingya interpreter and yet, there were many times where there was a lack of clarity between the Applicant and this interpreter.  The IAA was of the view that the Applicant actually spoke Bengali and was playing this down because if it were that he spoke Rohingya, it would seem to bolster the claims that he was making that he was born in Burma and, therefore, stateless. 

18. The Applicant had given a story to the IAA that, because he had lived for 10 years in Burma, and then 20 years in Bangladesh, the language that he spoke was a mixture of the Rohingya and the Bengali language and so it was impossible for anyone to say what it was that he spoke. 

19. The IAA took that explanation into account, but in the end rejected it and came to the conclusion that it was more likely that this was an attempt to bolster his claim. 

20. The IAA looked at the claim of there being a fear of harm because of being a member of the Barua Buddhist minority.  The IAA had quite a lot of country information which they concluded demonstrated that there would be no real risk of serious harm to the Applicant if he were to return to Bangladesh because of his religion. 

21. The IAA ended up finding that the Applicant was a national of Bangladesh and found that he did not ever live in Burma or that he speaks in a way that would mark him out from being from Burma and so, therefore, he had no real chance of suffering physical or discriminatory harm because of that. 

22. The IAA looked at what occurs, according to country information, for people who have been returned to Bangladesh because they were failed asylum seekers, and came to the conclusion, on that country information, that they were not satisfied the Applicant would face a real chance of suffering harm of any kind for having left the country and then returned, or having sought asylum in Australia or for being a failed asylum seeker. 

23. At paragraph 35, the IAA said:

    Considering the circumstances of the applicant in their totality, and on the evidence before me, I am not satisfied that the applicant would face a real chance of experiencing harm of any kind for any reason from any actor of if he were to return to Bangladesh. I am therefore not satisfied that the applicant would face a real chance of serious harm if he were to return to Bangladesh.

24. The IAA then looked at the complementary protection assessment criteria and came to the conclusion that they were not satisfied the Applicant would face a real chance of experiencing harm of any kind if he were to return to Bangladesh.  On that basis, they affirmed the decision.

25. Having filed the originating application, there was scope given in the orders of Registrar Belcher made on 18 July 2018 that the Applicant could file and amended originating application.  He did so on 10 October 2018.  There were two grounds of application.  The first ground was a very general ground.  That is:

    1. The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision. 

26. Firstly, I cannot look at what the decision of the delegate of the Minister is.  I am only concerned with the Immigration Assessment Authority.   Secondly, it is such a ground without further particular says nothing and for that reason, that ground has no merit.

27. The second ground is this. 

    2. The decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error, in that the following findings are irrational and/or illogical. 

28. It then lists six findings.  I will go through each of those seriatim.  The first finding was:

    (a) The finding (at paragraph 17) that the applicant’s hands were not injured in the circumstances that were claimed.

29. The Applicant has in the application claimed that “it was irrational for and/or illogical for the IAA to rely, in the absence of any other contradictory evidence, on ‘serious doubts’ about the credibility of the applicant’s claim to have lived in Burma, as the basis for the dismissing the applicant’s evidence about the causes of the scars on his hands.”

30. In my view, this was a finding that was certainly open to the IAA.  The IAA does not have to find that there is contradictory evidence to rely upon in dismissing an Applicant’s claim.  An Applicant’s claim can be simply not believed or not accepted.  There does not have to be contradictory evidence for the IAA not to be believe the claim of the Applicant.  Given that that there were those serious doubts, it was certainly open for the IAA to come to the view that they were not satisfied that the Applicant’s hands were injured in a clash with Burmese military.

31. The second aspect is:

    (b) The finding (at paragraph 21) that the applicant had not been completely forthcoming about his language abilities. 

32. The Applicant, in this application, has determined that the IAA has looked at how well he could understand English.  That is not what the IAA has looked at.  The IAA has looked at whether or not the way in which the Applicant had asked for a Rohingya interpreter was done as a deliberate ploy to somehow bolster his claims.  That finding again was particularly one that the IAA looked at very thoroughly and came to the conclusion.  That conclusion was certainly open and was not illogical or irrational.

33. The third finding is:

    (c) The finding (at paragraph 22) that it was more likely the applicant had denied he was able to speak fluent Bengali, and that he persisted in requesting the use of an Rohingya interpreter, in an attempt to substantiate his claim to having been born and raised in Burma’s Rakhine State.

34. Again, I have already dealt with this claim in looking at the last claim.  It was a conclusion that was open to the IAA as they do not have to slavishly accept everything that an Applicant says to them.

35. The fourth finding is:

    (d) The finding (at paragraph 25) that the IAA did not accept that the applicant had ever lived in Burma, and the finding that the applicant was born in and is a national of Bangladesh and only of Bangladesh and that this is true of the applicant’s parents and all of his siblings. 

36. The application says that this theory of the Applicant’s was not implausible and, therefore, “it was illogical and/or irrational of the IAA to reject this plausible theory based on its view that the applicant’s evidence was “unconvincing”, when that credibility finding was based on inconsistencies and implausibility.”

37. It is trite to say that it is a matter for the IAA as to what they believe and what they accept.  The IAA has gone through a thorough assessment of all the evidence and has come to the conclusion that they have come to.  It was certainly a conclusion that was open on the evidence and, therefore, cannot be said to be illogical or irrational. 

38. The fifth finding was:

    (e) The finding (at paragraph 32) that the IAA did not accept that the applicant had suffered any of the discriminatory harm he claims to have experienced in Bangladesh. 

39. Again, this was something that IAA has, as their remit, to do.  That is, make an assessment to see whether or not they accept the claims of the Applicant.  This ground again seems to be based on a wrong premise that the IAA must accept everything that an Applicant says unless there is something to the contrary. 

40. The sixth finding is:

    (f) The finding (at paragraph 34) that the IAA was not satisfied and not did not accept that the applicant has ever departed Bangladesh in an unlawful manner. 

41. The application says that this is irrational or illogical because the Applicant did not hold or never held a passport.  However, the IAA was very careful in looking at the country information which shows that Bangladeshis often went to Malaysia without passports and then came back.  That this was a common practice which did not, in and of itself, denote anything of a sinister nature in how this had occurred. 

42. Even if it were that he had departed Bangladesh in an unlawful manner because he did not have a passport, this was merely an observation that had been made and could not be said to have been the sort of factual error that results in a jurisdictional error.  So I do not find that there is any substance in that claim either.

43. The Applicant has appeared in person with the aid of an interpreter.  When I asked him about these grounds of this application, he really had no idea of what it was that was said.  It is obvious that someone else has drafted these grounds for him. 

44. All he would say to me was that he was beaten by the military.  He said that, the IAA said “that they don’t trust me”, that is the Applicant.  The Applicant said that he had no evidence to give to them, but he did have scars on his body.  He said that because he spoke two languages, the IAA thought he was not a Rohingya.  They said that because he can speak Rohingya, he can, therefore, not be Bengali and that is not correct.

45. He said that since he came to Australia, he has done many interviews.  There are differences in those interviews because things happened to him while he is living in Australia, such as study.  He said that his command of English in the first interview that he gave was nowhere near as strong as his command of English in the second interview because he has done study since then, and that that is the reason why there are differences in his interviews. 

46. He said that the IAA doubted his religion and they are incorrect, that he has always had that religion. He said that he has told the truth to the department.

47. Many of the things that he has said to me are not technically correct, especially the one about the IAA doubting his religion.  But what it is that he is asking me is really to undertake an impermissible merits review. 

48. Having looked all of the matters that have been given to me by the Applicant in person and in his application and having looked at the IAA decision itself, I am of the view that there has been no jurisdictional error established. 

49. Therefore, I dismiss the application with costs in the sum of $7,000.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:     18 April 2019