DMX17 v Minister for Immigration

[2018] FCCA 2629

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMX17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2629

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to take into account relevant considerations – whether the Authority failed to take into account country information – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5H, 36, 473DB, 473DC, 473DD, 476

Applicant: DMX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2473 of 2017

Judgment of: Judge Street

Hearing date: 17 September 2018

Date of Last Submission: 17 September 2018

Delivered at: Sydney

Delivered on: 17 September 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 17 September 2018

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT SYDNEY

SYG 2473 of 2017

DMX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 made on 7 July 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australia on 24 March 2013 as an unauthorised maritime arrival. The applicant is a Muslim of Bengali ethnicity and was born in a particular village in the Jessore district. The applicant claimed to fear harm from the Awami League supporters due to his support for the opposition party, the Bangladesh National Party (“BNP”), and from the family of a man who the applicant is alleged falsely of murdering. 

3. On 20 December 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The delegate did not accept the applicant held a profile that would raise the interest of the Awami League. The delegate did not accept the applicant is being persecuted by the Awami League or that the group seeks to harm the applicant because of the 2012 attack and assault. The delegate did not accept that the applicant was at risk of harm for the alleged murder of a man.

4. On 5 January 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided the applicant with an attached fact sheet and Practice Direction which explained that the applicant giving the applicant an opportunity to put on submissions and new information. Submissions were provided on behalf of the applicant dated 16 January 2017 which were expressly referred to and considered by the Authority under the requirements of s 473DC and s 473DD of the Act.

5. The Authority in its reasons identified the background to the visa application and had regard to the information provided under s 473CB of the Act. The Authority’s reasons in relation to the submissions dated 16 January 2017 identify taking into account the same insofar as they engage with the delegate’s decision. The Authority identified what was said to be new information in respect of the applicant’s brother’s death and found that there were not exceptional circumstances to justify considering the new information. The Authority’s reasons reflect taking into account both limbs of s 473DD of the Act and do not reflect any misunderstanding or misapplication of the statutory provisions.

6. The Authority summarised the applicant’s claims. The Authority found the applicant was not an active supporter of the BNP apart from attending a few public rallies. 

7. The Authority accepted part of the applicant’s claim in relation to damage to a shop, but identified having serious concerns regarding the applicant’s claims in respect of his brother being hospitalised and dying two years later from those injuries. The Authority accepted that the applicant’s brother was alive at the time of the applicant’s arrival in Australia. The Authority found that if the brother had been so badly beaten such as to threaten his life, the applicant would have mentioned this during the arrival interview. The Authority did not accept the applicant’s brother was so severely beaten that he died from his injuries.

8. The Authority referred to the applicant’s claimed fear of harm from the Awami League on return due to lack of cooperation with their extortion, demands, and fears he will face the same fate his brother. The Authority found that the fear was not well-founded. The Authority was not satisfied the applicant faced a real chance of serious harm from the Awami League in connection with the events claimed in respect of 2012. 

9. The Authority turned to the applicant’s claim that he was falsely accused of the murder of an Awami League activist who was involved in the attack on him and his brother and the ransacking of the shop in 2012. The Authority identified having serious concerns regarding the applicant’s claim that an Awami League activist was killed and that he was falsely accused of murder. The Authority referred to the applicant stating that he did not know how he heard about the death or the reason for the death. The Authority considered that if such a significant event had occurred where the applicant was implicated, he would be fully cognisant of the timing and circumstances of the death and how he came to know of the death.

10. The Authority found the applicant’s explanation for the reason for him being accused of murder rather than his brother is implausible. The Authority found it implausible that the applicant would have been able to openly live in his village and frequent public places where he was known and return to his home village regularly when living in a particular location if there was an ongoing criminal matter against him without coming to the attention of the police. The Authority was not satisfied that the family of the deceased Awami League activist wish to harm the applicant.

11. The Authority referred to the applicant not providing any evidence to confirm that the local Awami League member was killed, and found that the applicant has given inconsistent accounts of the time of the alleged death of the Awami League member, and that he was unable to recall how he came to know of the death or the circumstances of the death. Taking these matters cumulatively, the Authority found it was not satisfied with the applicant’s explanations. The Authority was not satisfied with the overall credibility of the applicant’s claims in this regard.

12. The Authority did not accept the Awami League member who was involved in extortion of BNP business owners died or was killed. The Authority was not satisfied the applicant is wanted by the police for murder or that the applicant went into hiding for this reason or that he would be arrested on return by the Bangladeshi authorities. The Authority was not satisfied that the family of a deceased Awami League activist will seek retribution against the applicant on return. The Authority was not satisfied the applicant was actively involved with the BNP in his village other than by occasional attendance at rallies which his brother invited him to attend.

13. The Authority was not satisfied the applicant would be politically active on return to Bangladesh or that his involvement would extend beyond merely supporting the party. The Authority was not satisfied the applicant has a well-founded fear of harm as a result of any past or future BNP support. The Authority was not satisfied the applicant faces a real chance of persecution by the Awami League, the Bangladeshi police, or the family of the deceased Awami League activist on return.

14. The Authority was not satisfied there is a real chance of the applicant facing any penalties, including detention and/or imprisonment as a result of his illegal departure. The Authority found the applicant did not meet the definition of refugee under s 5H(1) of the Act and that the applicant did not meet the criteria under s 36(2)(a) of the Act. 

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

16. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court. From the bar table the applicant maintained that he was not able to get documents to support his claims from his family and could not go back to Bangladesh to obtain them and referred to members of the previous government being in jail. The applicant’s submissions from the bar table in substance, invite this Court to engage in merits review. This Court does not have power to review the merits. Nothing that was said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the originating application together with particulars are as follows:

   1. In making decision, the IAA acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   2. The IAA failed to assess harm based on my claims.

   3. The IAA failed to assess the present situation in Bangladesh since I left.

   4. The IAA decision effected by the natural justice.

   5. The IAA made decision without any verification of my genuine documentary evidences and statement.

   6. The IAA decision is identical or similar of the Departmental decision.

   Particulars:

   IAA unreasonably raised doubt over my claims for my political believe in Bangladesh. The Department and the IAA misunderstood or misconstrued the facts which was effect the decision.

   And for the safety of my life I forced to leave Bangladesh by boat. When it became worse, I decided to leave Bangladesh.

   I argue that the Department and the IAA asked many irrelevant questions to test the credibility of my evidence.

   The Department and the /AA found inconsistency because the questions were asked in such a manner for which I was not prepared after arrived by boat in Australia. Sometimes I was nervous and confused at the time of interview with the Department & the IAA. I did not understand interpreter properly.

   For the protection of my life and I became serious target by the present Awami League government and their activists.

   The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I will provide more details in my Amended Application.

   I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.

Ground 1

1. In relation to ground 1, there is no relevant consideration identified that the Authority failed to take into account. Insofar as ground 1 might be read as referring to the new information, being the date provided by the applicant as to the when his brother died, the Authority gave reasons as to why the Authority was not satisfied that there were exceptional circumstances to justify considering the new information, and there is no apparent error by the Authority in that regard. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Authority made dispositive findings in respect of the applicant’s claims that were open to the Authority for the reasons given by the Authority as summarised above. Those reasons appear logical and rational and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Authority’s reasons reflect giving real and genuine consideration to the applicant’s claims, evidence, and submissions. There is no claim identified that the Authority failed to consider. The Authority correctly identified the relevant law in relation to whether there is a well-founded fear of persecution and whether there is a real risk of significant harm. On the face of the Authority’s reasons, correctly applied the relevant law in assessing the applicant’s claims.  No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the Authority referred to country information in relation to the applicant’s claims and referred to a DFAT Country Information Report Bangladesh dated 5 July 2016 in relation to politically motivated violence and the applicant’s illegal departure. There was no general claim advanced relating to the present situation in Bangladesh and no such claim fairly arose on the material before the Authority. It was a matter for the Authority to determine what country information to accept. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, no particulars are given in respect of the alleged denial of natural justice beyond what appears underneath in the general heading of particulars. Under the general heading of particulars, there is reference to a proposition that the applicant did not understand the interpreter properly. No evidence has been provided in support of that allegation. There is no reference to any difficulty with the interpreter in the decision of the delegate or in the decision of the Authority.

2. The applicant has not identified any material matter in respect of which the applicant did not understand the interpreter or in respect of which the interpreter did not understand the applicant. It is apparent that the applicant was not interviewed by the Authority. Under the statutory regime in Part 7AA, the Authority was not required to invite the applicant to an interview to raise any of the concerns it had with his case. The applicant was given an opportunity as outlined in the Practice Direction sent to the applicant, to provide new information and submissions. No issue was identified or provided to the Authority in that regard of a difficulty with the interpreter.

3. The Court is not satisfied that there was any material difficulty with the applicant being able to understand the interpreter or as to the interpreter understanding the applicant. Further, the Authority’s reasons do not reflect any misunderstanding of the applicant’s claims and evidence.  On the face of the material as referred to above, the Authority complied with its statutory obligations and provided logical and rational reasons that were open to the Authority dispositive of the applicant’s claims.

4. Further, the Authority gave the applicant an opportunity to provide new information and submissions.  To the extent that the particulars refer to being asked questions in respect of credibility, there is no relevant error identified by the interviewer exploring with the applicant his credibility in respect of the applicant’s claims, nor does the exploring of the applicant’s credibility by the interviewer identify any basis upon which there can be said to be any relevant error by the authority.

5. The Authority was bound by the provisions of Part 7AA and subject to the provisions of the Part was to conduct a review without accepting a request for new information and without interviewing the referred applicant under s 473DB of the Act. There is no identified misunderstanding by the Authority of the applicant’s claims or facts or any misconstruction of the applicant’s claims or alleged facts. It was a matter for the Authority to make findings on the review material.

6. The adverse findings summarised above are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the conduct of the review on its merits. There is no error disclosed by the applicant’s assertion that the review was not conducted freely and fairly. The review was conducted on the face of the material before the Court in accordance with Part 7AA. No denial of procedural fairness in the conduct of the review is made out on the material before the Court by the Authority.

7. The Court is not satisfied that the Authority’s decision is adversely affected by any alleged want of natural justice as alleged in ground 4 and as expanded in the particulars for the reasons given. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, it was for the applicant to establish the applicant’s protection claims pursuant to s.5AAA(2) of the Act. No easily ascertainable material fact was identified to support any specific legal unreasonableness in relation to any want of exercise of power under s.473DC of the Act. This ground reflects a disagreement with the adverse findings that were open to the Authority for the reasons summarised above and otherwise invites impermissible merits review. No jurisdictional error is made out by ground 5.

Ground 6

1. In relation to ground 6, the manner in which it is alleged the Departmental decision and the Authority’s decision are identical or similar is not specified. The decisions on their face do not support the contention of being identical. The Authority’s reasons read fairly as a whole, reflect the Authority having a real and genuine engagement with the applicant’s claims, evidence and submissions and are consistent with the Authority conducting a statutory review required under Part 7AA. No jurisdictional error as alleged in ground 6 is made out.

Conclusion

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

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  23 November 2018