DKL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 2128

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2128

File number:	SYG 2302 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	3 August 2020
Catchwords:	MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made findings based on trivial/insignificant matters – whether the Authority made an illogical/irrational decision – whether the Authority took into account irrelevant considerations – no jurisdictional error made out – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss. 5AAA, 5H, 36, 473CB, 473DB, 473DC, 486
Number of paragraphs:	43
Date of last submission/s:	3 August 2020
Date of hearing:	3 August 2020
Place:	Sydney
Applicant:	In person
Solicitor for the First Respondent:	Ms E Warner Knight, Australian Government Solicitor

ORDERS

SYG 2302 of 2019

BETWEEN:

DKL19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	3 AUGUST 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”), under Part 7AA of the Act made on 22 August 2019, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa (“SHEV”). 

2. The applicant was found to be a citizen of Bangladesh, and his claims were assessed against that country. 

3. The applicant arrived in Australia as an unauthorised maritime arrival in March 2013.

4. The applicant claimed to fear harm from his family by reason of having worked for a period as a security guard in a brothel. The applicant also claimed to fear harm by reason of his membership and support for Jamaat-e-Islami (“JI”) and by reason of being a failed asylum seeker.

5. On 25 July 2019, the Delegate found that the applicant failed to meet the criteria for the grant of the SHEV. 

6. On 30 July 2019, the Authority wrote to the applicant explaining that the application for the SHEV had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions. No such new information or submissions were provided by the applicant to the Authority. 

7. The Authority, in its reasons, identified the background to the SHEV application and had regard to the material given by the secretary under s 473CB of the Act. The Authority identified the relevant law, including in an applicable law annexure incorporated by pagination in the Authority’s reasons.

8. The Authority referred to the applicant’s claim about attending JI meetings when he was about 18 or 19 years old and referred to the applicant’s claims about attending meetings and rallies.

9. The Authority accepted that the applicant worked for a period of time as a guard for a brothel and that several of his brothers beat him because they disapproved of his job there. The Authority did not accept that the applicant is estranged from his family, and noted that the applicant confirmed in his SHEV application and interview that he continues to have regular contact with several other of his siblings. 

10. The Authority was not satisfied that there is a real chance the applicant will suffer harm from his brothers, his family or anyone else as a result of having worked as a guard for a brothel.  The Authority referred to the incident having occurred over a decade ago and that after the assault by his brothers, the applicant remained living in the village where his family resides for a period of four months.

11. The Authority also referred to the applicant accidentally meeting one of the brothers, after the assault, who did not threaten the applicant’s life or physically harass or harm him but paid him money to stay away from the family. The Authority also took into account that no relatives have threatened the applicant with harm in the intervening years. The Authority was not satisfied that there is a real chance the applicant will suffer harm from a family member or anyone else now or in the reasonably foreseeable future in connection with his work as a brothel guard. The Authority was not satisfied that alienation of the applicant by some of his siblings amounts to serious harm. 

12. The Authority did not accept that the applicant was a member of JI or otherwise politically active in that political party in Bangladesh. The Authority provided three detailed reasons in support of that adverse finding, which include:  firstly, the changing nature of the applicant’s alleged involvement with JI; secondly, the applicant’s change in respect of the time that he allegedly commenced his political engagement; and thirdly, the applicant’s account being inconsistent with country information. The Authority referred to a letter provided by the applicant and identified it to be undated and that it gave no details as to what the applicant did as an active JI member and that its contents were at odds with the applicant’s own evidence at the SHEV interview. Taking into account the prevalence of fraud in Bangladesh in relation to documentation, the Authority gave the letter no weight.

13. The Authority referred to the applicant’s claim that he had continued to speak with other JI members in Bangladesh and associate with JI members in Australia. The Authority did not accept that the applicant had maintained communications with JI members in his homeland in the eleven years he has been absent. The Authority referred to the want of detail as to who the applicant was in contact with, the want of detail as to why the applicant maintained such links, the want of detail as to how frequently they communicated, the want of detail as to what they discussed or why the alleged activities would put him at a risk of harm. The Authority did not accept that the applicant has lived or associated with JI members in Australia, as claimed in the SHEV application.  The Authority also took into account that the applicant had not claimed that the Awami League, or any opposition parties or anyone else is aware he was approached by a religious group. The Authority was not satisfied that there is a real chance the applicant will suffer harm in connection with these claims. 

14. The Authority referred to the Delegate having considered whether the applicant was at risk of harm as a failed asylum seeker. 

15. The Authority took into account country information and was not satisfied that there is a real chance the applicant will suffer any harm because he sought asylum overseas. 

16. The Authority was not satisfied that there is a real chance the applicant will suffer persecution from his brothers, family, other relatives, the Awami League, political parties, or anyone else.

17. The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

18. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Bangladesh, there is a real risk that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act, and affirmed the decision under review. 

    BEFORE THE COURT

19. These proceedings were commenced on 5 September 2019. On 26 September 2019, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence, and submissions. The applicant has belatedly filed submissions that purport to raise new grounds. 

20. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed he understood the explanation given by the Court. 

21. The applicant submitted orally that he had had an incident involving his hand but did not put any oral submission as to why the Authority’s decision was the subject of error. Nothing said by the applicant identified any jurisdictional error.

    THE GROUNDS

22. The grounds in the written application are as follows:

    (1)The IAA fell into error that its failed to ask the correct assessment whether the applicant is likely to suffer harm in his home country due to JI membership Bangladesh.

    Particulars

    (i)The IAA focused that the applicant will not face discriminating treatment or harassment might experience from his political rival would not appear to reach the threshold for finding of serious or significant harm as described and defined in the Act (s5J (5); s (36) (2A) of the Act).

    (ii)The IAA did not accept that the applicants has suffered harassment and discretionary treatments from family member and present ruling government's thugs as the applicant was an activist of the Jamati Islami Bangladesh (JIB).

    (iii)The applicant believe that the IAA made the decision without making an inquiry. If the IAA made an inquiry it would find the extrajudicial killing took place against the JI leaders, and present unelected government came in to power from December 2008.

    (iv)The IAA failed in to assess, whether the applicant could be subject to harm or will be subject to mistreatment and fear of his life from present government due to his previous linked or involvement with the JI.

    (v)The IAA also failed that, assess the applicant will not be subject to any harassment or mistreatment due to his previous job with a brothel which a social taboo in a Muslim country.

    (2)The IAA is erred and its failed to assess convention nexus/complementary/temporary protection criteria whether a period of exile from home would amount of "significant harm" (s36(2A]) or serious harm (s91R[2]) and section 5 of the Migration Act t 1958 (he Act) and thereby committed jurisdictional.

    Particulars

    (i)The IAA focus on the applicant did not suffer mistreatment of physical treatment from his family member and rival political party of AL.

    (ii)The IAA did not accept that when applicant employment contact was finished and he escaped from Malaysia to Indonesia as he was afraid of arresting him by the Malaysia police and push back to Bangladesh where he will face dare consequence.

    (iii)The IAA did not peruse the JI leader's supporting letter of my membership with the JI

    (iv)The IAA did not peruse the UN, and USA Human right reports of Bangladesh on the mistreatment and extrajudicial killing to the JI activists and leaders.

    (v)The other funding that killing, detaining and kidnaping the JI activists continuing by the present government.

    (3)The IAA made finding that the applicant will not face any problem previously while he was in Bangladesh and will not face any harm if he returns to his country which is illogical and thereby fell into jurisdictional error.

    Particulars

    (i)The IAA found that the applicant is not credible persons and the applicants did not satisfy the criterion set out ins 36(2)(a).

    (ii)The IAA found that the JI activists are not subject to harm and attacked by the AL and police.

    (iii)The IAA fell in to error as it failed to differentiate the activist and regular member of the JI.

    (iv)As the JI regular member has to maintain certain activities in writing to their daily note book and each month the reports are checked by the senior leaders.

    (v)In fact, the applicant was a simple activist and generally patriciates for street demonstration any call for the same by the senior leaders of the JI.

    (4)The claim of particular social group/ political opinion arises in the material. The IAA in erred when its failed to consider the particular social group.

    Particulars

    (i)The risk to the applicant and threatens him by ruling party activists where very serious and harmful to his daily life in Bangladesh.

    (ii)The applicants will face dare consequence from the ruling party goons as the ruling party still in power by a fraught and vote rigging election, held on 30/12/2018.

    (iii)The claim arose on the material.

    (iv)The IAA thereby committed jurisdictional error.

    GROUND 1

23. In relation to ground 1, the Authority did not accept that the applicant was a member of JI. The Authority provided logical and rational reasons in support of that adverse finding. That included the three reasons summarised above. The adverse finding in those circumstances cannot be said to lack an intelligible and evident justification. The adverse findings were not based on trivial or insignificant matters and were open to the Authority. No jurisdictional error arises because of the substantive allegation in ground 1. 

24. The first particular (i) to ground 1 appears to assert that the Authority erred in its adverse finding about the criteria under the Refugee Convention and in relation to complementary protection. The Authority correctly identified the relevant law and the Authority on the face of its reasons correctly applied the relevant law. No jurisdictional error is made out by particular (i) to ground 1.

25. The applicant’s particular (ii) asserting his involvement with JI is different from the claim that the applicant advanced in relation to his membership of JI. On the face of the Authority’s reasons, the Authority made dispositive findings in respect of the applicant’s claims.  In so far as this is a claim as to the applicant’s involvement with JI. Those adverse findings were logical rational, dispositive findings of the applicant’s JI claim and that were open to the Authority. No jurisdictional error is made out by this particular

26. Insofar as particular (iii) suggests that the Authority should have made an inquiry, there is no easily ascertainable material fact that has been identified to give rise to any obligation to exercise powers under s 473DC of the Act. This particular does not give rise to any jurisdictional error.

27. In relation to particular (iv) to ground 1, the Authority did not accept that the applicant was a member of the JI. This particular does not identify any jurisdictional error.

28. In relation to particular (v), the Authority took into account the applicant’s treatment by his brothers and made adverse findings as to the real risk or real chance of serious harm or significant harm that were open for the reasons given by the Authority.  No jurisdictional error is made out by this particular.

    GROUND 2

29. In relation to ground 2, the Authority’s reasons identify the Authority being aware of the period of time since the applicant had left Bangladesh, and the Authority did not accept there was a real chance or a real risk of the applicant suffering serious harm or significant harm by reason of being a failed asylum seeker. No other claim was advanced by the applicant to fear harm because of the period of exile and no such claim clearly arose on the material before the Authority.  No jurisdictional error is made out by the substantive allegation in ground 2. 

30. The particulars (i) to (v) to ground 2 make reference to the letter which the Authority identified considering, and for logical and rational reasons placed little weight on the same. Otherwise, it was a matter for the Authority to decide what account the country information it accepted and to make findings on that country information in respect of the applicant’s claims. There is no basis to find that the Authority did not take into account the country information before the Authority. These particulars otherwise invite impermissible merits review. No jurisdictional error arises by reasons of particulars (i) to (v) of ground 2.

    GROUND 3

31. Ground 3 alleges that the Authority’s decision in respect of the applicant not facing a real risk or real chance of serious harm or significant harm is illogical and rational. The Authority’s reasons correctly identify the applicant’s claims, reflect a genuine intellectual engagement with those claims and evidence and the making of adverse findings that were open to the Authority for the reasons given by the Authority. No jurisdictional error is made out by the substantive ground 3. 

32. In relation to the particulars (i) to (v), the Authority did accept part of the applicant’s evidence and claims, but did not accept that the applicant was a member of the JI and the applicant’s disagreement with the adverse finding does not identify any jurisdictional error. The Authority also took into account the applicant’s claims in relation to maintaining connections and activities with JI and gave logical and rational reasons for rejecting that claim as summarised above. No jurisdictional error arises by reason of the particulars (i) to (v) to ground 3. 

    GROUND 4

33. In relation to ground 4 including particulars (i) to (iv), other than the applicant being a failed asylum seeker, in respect of which there was a dispositive finding, no other claim was advanced that the applicant was a member of a particular social group. Insofar as this ground seeks to agitate the applicant’s membership of JI, the Authority made adverse findings that were open to the Authority in that regard which cannot be said to lack an evident and intelligible justification. A claim that is not advanced before the Authority cannot give rise to any jurisdictional error. 

34. There is no other claim to fear harm that arose on the material before the Authority which the Authority failed to consider. No jurisdictional error is made out by ground 4 or the particulars to ground 4.

    THE APPLICANT’S WRITTEN SUBMISSIONS

35. The applicant’s written submissions appear under 5 grounds. Insofar as those submissions seek to agitate ground 1, as to the applicant’s membership of JI, the Authority made adverse findings that were open in that regard. Nothing in the applicant’s submissions under ground 1 of the written submissions makes out any jurisdictional error. 

36. In relation to the submissions on ground 2, this really appears to be an invitation for impermissible merits review. The Authority was not required to approach the applicant’s claims as being positive grounds that should be accepted. The Authority was not required to engage in the making of an inquiry as no easily ascertainable material fact has been identified. Under s 5AAA of the Act, it is for the applicant to provide sufficient evidence to establish his claims. The Authority’s reasons reflect a correct identification of the relevant law, and the making of adverse findings were open for the reasons given by the Authority. There were no circumstances in the present case that gave rise to a requirement for the Authority to expressly consider its powers under s 473CB of the Act. It was open to the Authority to place little weight on the document that was provided by the applicant in support of his involvement with JI for the reasons given by the Authority, as summarised above. 

37. There was no irrelevant consideration that has been identified, or irrelevant issue in the Authority’s reasons, and the adverse findings by the Authority cannot be said to lack an evident and intelligible justification. There is no basis to find that the Authority made irrational findings, nor was there any basis to find that the Authority failed to correctly apply the relevant law. No jurisdictional error is made out by the written submissions in relation to ground 2. 

38. In relation to the written submissions on ground 3, this again fails to take into account s 5AAA of the Act, in the reference to a positive assessment is misconceived. As already identified, the Authority did accept part of the applicant’s claims and evidence and gave logical and rational reasons for making adverse findings in respect of the claims that the Authority rejected. The applicant’s written submissions in relation to ground 3 otherwise, in substance, invite merits review and do not make out any jurisdictional error.

1. The written submissions on ground 4 refer to a provision that had no application to the review conducted under Part 7AA of the Act. Under Part 7AA, the Authority, pursuant to s 473DB of the Act and subject to the provisions of that Part, was to conduct a review without accepting or requesting new information; and without interviewing the referred applicant.

2. There is no issue of a kind that has been identified that would have required express consideration of the powers under s 473DC of the Act. No jurisdictional error is made out by the applicant’s written submission under the heading Ground 4. 

3. Ground 5 of the applicant’s written submissions appears to refer to a claim of a denial of freedom of expression. No such claim was expressly made by the applicant and no such claim freely arose on the material before the Authority. A claim not advanced before the Authority and which does not arise freely on the material before the Authority cannot give rise to any jurisdictional error.

4. The assertion that the Authority failed to apply the correct test in relation to the Refugee Convention or in relation to complementary protection is inconsistent with the Authority’s reasons. The Authority’s adverse findings were dispositive of the whole of the applicant’s claim and no integer has been made out or claim made out that the Authority failed to consider. Further the Authority correctly identified the applicant’s claims. The assertion of total denial by the Authority of the applicant’s claims is as explained incorrect. The applicant’s submissions otherwise express a disagreement with the adverse findings and do not identify any jurisdictional error. 

5. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 3 August 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 10 March 2021