DIT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FCCA 171
•3 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DIT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 171
File number(s): SYG 2275 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 3 February 2021 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – whether the Authority applied the correct test or denied the applicant procedural fairness considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 36, 57, 473DA, 473DC, 473DD Cases cited: BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091
CBN17 v Minister for Immigration and Border Protection [2018] FCA 788 at [31]; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
DIT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 169
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
Number of paragraphs: 28 Date of hearing: 3 February 2021 Place: Sydney Counsel for the Applicant: Mr P Bodisco Solicitors for the Applicant: ABU Legal Counsel for the Respondents: Mr N Swan Solicitors for the Respondents: Mills Oakley ORDERS
SYG 2275 of 2019 BETWEEN: DIT19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
3 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application filed on 4 September 2019 is dismissed.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,400.
REASONS FOR JUDGMENT
JUDGE DRIVER:
I have before me an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made on 19 August 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 29 January 2021, which I adopt.
The applicant is a citizen of Bangladesh born in February 1988.[1] He first arrived in Australia 24 March 2013 as an unauthorised maritime arrival.[2] On 18 October 2016, he applied for the visa.[3]
[1] Court Book (CB) 46
[2] CB 192
[3] CB 33-69
In support of his application for the visa, the applicant raised, among other things, the following matters:[4]
(a)the applicant was involved in the Bangladeshi Nationalist Party (BNP). His involvement started when he was 12 or 13 and, 6 or 7 years later, he became the Assistant to the Secretary of the youth wing of the BNP. In 2009, there was an election, and the applicant was involved in campaigning. Fights took place with Awami League (AL) members at this time.[5] The applicant was present at five fights and was injured. As a result of the fighting, the applicant often went into hiding in nearby villages;[6]
(b)in 2010, the applicant went to Dhaka to participate in political rallies. When he arrived, he and his group were attacked by AL members. One group member, AH, was killed, which incited further political activity from the BNP;[7]
(c)the applicant was accused by the AL of being a spy for the BNP. His parents told him that AL members began coming to his house to look for him. He began to move between different houses in his village to remain safe. Shortly before he fled Bangladesh, AL members pulled a gun on the applicant. The applicant and his parents decided that he had to leave Bangladesh for his own safety;[8]
(d)Since leaving Bangladesh, the AL has been asking about him and false charges have been laid against him.[9]
[4] CB 70-75
[5] CB 71
[6] CB 72
[7] CB 73
[8] CB 74
[9] CB 74-75
The applicant claimed that, if he returned to Bangladesh, he would be killed or seriously harmed by the AL on account of his membership of the BNP.
On 7 November 2018, the applicant attended an interview with the delegate in relation to his application for the visa. On 15 November 2016, the delegate sought, pursuant to s 57 of the Migration Act 1958 (Cth) (Migration Act), comment from the applicant on adverse information that suggested that he was not a BNP supporter.[10] A written response was provided on 4 December 2018.[11] On 10 July 2019, the delegate refused to grant the visa.[12]
[10] CB 166-167
[11] CB 173-174
[12] CB 188-209
On 16 July 2019, the delegate’s decision was referred to the Authority for review.[13] The applicant provided a submission to the Authority on 5 August 2019.[14] On 19 August 2019, the Authority affirmed the delegate’s decision.[15]
[13] CB 211-212
[14] CB 224-225
[15] CB 235-254
The Authority’s decision
The Authority had regard to the material given by the Secretary under s 473CB of the Migration Act.[16] It took into account the submission provided by the applicant insofar as it was argument, rather than new information.[17] The Authority also explained why it was not satisfied that s 473DD was met in relation to new information that had been provided.[18] The applicant did not challenge this part of the Authority’s reasons in his show cause application.
[16] CB 236 [3]
[17] CB 236 [4]
[18] CB 236-238 [6]-[11]
The Authority had “significant doubts as to the applicant’s overall credibility”, which fundamentally arose from the applicant’s conduct in Australia and his social media activity.[19]
[19] CB 239 [16]
The Authority discussed the information put to the applicant by the delegate under to s 57 of the Migration Act as well as the applicant’s response to it.[20] The Authority was not persuaded by the response that had been given, finding the claims made by the applicant to be implausible.[21] The Authority was not persuaded that the applicant attended an event in Australia at which the Bangladeshi Prime Minister (of the AL) appeared “out of curiosity” and was also concerned by his lack of participation in protests in relation to the incarceration of the BNP’s leader.[22] The Authority also found it highly unlikely that, if the Applicant was of interest to the Bangladeshi authorities and murder charges had been filed against him, he would have been able to attend a function with the Bangladeshi Prime Minister.[23]
[20] CB 239-241 [16]-[21]
[21] CB 241-242 [22]-[23]
[22] CB 241-242 [23]-[24]
[23] CB 242 [25]
The Authority also held concerns about the applicant’s claims separate to those arising from his activities in Australia.[24] It was concerned by the court documents provided by the applicant in relation to his claim to have been charged with offences including murder.[25] It noted that available country information suggested that forged and fraudulently obtained documents are easily obtainable in Bangladesh.[26] In light of this, and the other concerns held by the Authority about the applicant’s credibility, the Authority was not satisfied of the authenticity of the supporting documents relied on by the applicant and gave them no weight.[27]
[24] CB 242 [28]
[25] CB 243 [29]-[33]
[26] CB 244 [35]
[27] CB 244 [35]
The Authority considered that the applicant’s evidence as to his activities with the BNP in Bangladesh was not “compelling”, came across as “rehearsed and lack[ing] spontaneity”, and also considered that the applicant “had a propensity to exaggerate or aggrandise his claims”.[28] It observed that his evidence about his father had “developed significantly” between the visa application and his interview with the delegate,[29] that aspects of his claims were “farcical” and inconsistent,[30] and that there were “significant discrepancies” between the accounts about other matters given by the applicant in writing and then orally to the delegate.[31]
[28] CB 244 [36]
[29] CB 245 [37]
[30] CB 245 [38]
[31] CB 245 [39]
The Authority was of the view that the applicant had fabricated his claims as to why he left Bangladesh in their entirety, and the Authority rejected those claims. The Authority did not accept that the applicant was a BNP member, that he had been attacked by the AL whatsoever, or that he was the subject of false charges.[32] It did accept that the applicant had “on some very minor level” supported the BNP, but considered that the applicant was “of no interest to the authorities including AL supporters, members or cadres at the time he departed [Bangladesh]”.[33] The Authority accepted that the applicant had some involvement with the BNP in Australia.[34] However, the Authority was not satisfied that the applicant’s activities would come to the attention of the authorities on return, or that he faced a real chance of harm from his involvement in the BNP in Australia.[35] It was also not satisfied that the applicant had a genuine commitment to being politically engaged, or that he would be involved in politics, on return to Bangladesh.[36] The Authority concluded that the applicant would not face a real chance of harm for any political reason on return.[37]
[32] CB 246 [41]
[33] CB 246 [43]
[34] CB 247 [45]
[35] CB 247 [46]
[36] CB 248 [49]
[37] CB 248 [50]
The Authority accepted that the applicant had departed Bangladesh unlawfully.[38] However, it was not satisfied, on account of country information before it, that there was any real chance of the applicant facing any harm in Bangladesh on account of having departed illegally.[39] The Authority was also not satisfied that the applicant faced a real chance of harm in Bangladesh as a returning asylum seeker, as he did not have any profile of adverse interest to the authorities or the AL and would not have such a profile on return.[40]
[38] CB 248 [51]
[39] CB 249 [53]
[40] CB 249 [55]
The Authority thus found that the applicant did not meet s 36(2)(a) of the Migration Act.[41] In reliance on its earlier findings, and also that the “real risk” standard was the same as the “real risk” standard, the Authority was not satisfied that the applicant met s 36(2)(aa) of the Migration Act.[42] The Authority thus affirmed the delegate’s decision.
[41] CB 249 [56])
[42] CB 249-250 [57]-[61]
THE PRESENT PROCEEDINGS
These proceedings began were a show cause application filed on 4 September 2019, there are two grounds in it:
Ground One:
The Immigration Assessment Authority has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars:
In dealing with the Applicant’s claims under Section 36(2)(aa) of the Migration Act, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.
Ground Two:
The IAA denied procedural fairness to the applicant.
As I noted in my earlier interlocutory judgment,[43] the applicant sought leave to rely upon a proposed amended application, which leave I have refused.
[43] DIT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 169
It probably follows that the applicant no long seeks to rely upon the original show cause application, but as that is the only operative application before the Court, it is the one that I must deal with. Counsel for the applicant was instructed to make no submissions in relation to the application.
The evidence before the Court comprises the applicant’s affidavit accompanying his application, and the court book filed on 19 November 2019.
The grounds in the application are somewhat general. What is plain from the Authority decision is that the Authority harboured extreme credibility concerns about the applicant and his claims for protection.
Central to those concerns were the applicant’s activities in Australia, where he formed connections with a number of AL figures in Australia, and attended an event involving the AL Prime Minster of Bangladesh, notwithstanding his claims to be a supporter of the BNP.
The credibility concerns expressed by the Authority were not limited to that fact, but also extended to documents proffered by the applicant in support of his claims. In my view, the adverse credibility conclusions reached by the Authority were open to it on the material before it. I am also satisfied that the Authority followed its procedural obligations under Part 7AA of the Migration Act.
The Minister’s submissions deal with the two grounds of review advanced. I agree with those submissions and adopt them.
Ground One
This ground alleges that the Authority “failed to apply the correct test pursuant to s 36(2)(aa) of the Migration Act”. In the Particulars, it is further stated that, in dealing with the applicant’s claims, the Authority “explicitly failed to disaggregate the statutory formulae under s 36(2)(aa) of the Migration Act”. It is not clear what this is intended to mean.
There is no error, let alone jurisdictional error, in the manner in which the Authority approached the assessment of the complementary protection criterion in s 36(2)(aa) of the Migration Act. It correctly summarised the complementary criterion at [57]-[58] of its reasons.[44] The Authority observed at [60][45] that the “real chance” test (applicable in relation to s 36(2)(a)) and the “real risk” test involve the same standard. This is correct.[46] The Authority also relied on its earlier factual findings, namely that there was no “real chance” of harm for any reason claimed, and found that there was also no real risk of harm being suffered. That logically follows, given the equivalence between the two standards, and is an orthodox and permissible approach.[47] There is no basis in the Authority’s reasons to suggest any misunderstanding of the complementary protection criterion, or that it “failed to apply the correct test”. Even if the Authority had “failed to apply the correct test”, any error could not be material to its decision, given the fact that the Authority rejected all the applicant’s claims at a factual level. There was nothing of the applicant’s claims left upon which he could satisfy the criteria in s 36(2)(aa).[48]
[44] CB 249-250
[45] CB 250
[46] see eg. Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [246]
[47] see eg. CBN17 v Minister for Immigration and Border Protection [2018] FCA 788 at [31]; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32]-[35]
[48] cf. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]-[46]
Ground Two
This ground alleges that the Authority “denied procedural fairness to the Applicant”. No particulars of the alleged denial are given.
As explained by the High Court in BVD17 v Minister for Immigration and Border Protection[49] at [34], the consequence of the “codifying effect” of s 473DA(1) is that procedural fairness is the wrong “lens” through which the Authority’s conduct should be viewed, other than to the extent procedural fairness overlaps with legal unreasonableness. However, no allegation is made that anything the Authority did was legally unreasonable, and nothing in the available materials suggests any basis to find legal unreasonableness. It follows that this ground has no prospect of succeeding.
[49] (2019) 93 ALJR 1091
CONCLUSION
I conclude that the applicant is unable to demonstrate a jurisdictional error by the Authority. It follows that the Authority decision is a privative clause decision, and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister also seeks an order that the applicant pay costs fixed in the sum of $6,400. I will so order.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 4 February 2021
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