DSN17 v Minister for Immigration
[2018] FCCA 1631
•21 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DSN17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1631 |
| Catchwords: MIGRATION –Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority’s decision irrational, illogical or unreasonable. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), (36)(2)(a), 36(2)(aa), 424A, 424AA, 473CA, 473CB, 473 DA, 473DB |
| Cases cited: AFK16 v Minister for Immigration and Border Protection [2016] FCCA 1826 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 |
| Applicant: | DSN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 792 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 16 February 2018 |
| Date of Last Submission: | 16 February 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 21 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent entered a submitting appearance |
ORDERS
The amended application filed on 20 November, 2017 be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 792 of 2017
| DSN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a national of Bangladesh. He arrived in Australia by boat on 21 February, 2013. For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival. On 2 August, 2016 the applicant applied for a Safe Haven Enterprise (subclass 790) visa. On 23 February, 2017 a delegate of the first respondent refused the visa application.
Because the delegate’s decision was a fast track decision it was referred to the second respondent in accordance with s.473CA of the Act.
On 1 August, 2017 the second respondent affirmed the delegate’s decision not to grant the applicant a safe haven enterprise visa.
By these proceedings the applicant seeks that the second respondent’s decision be quashed and his visa application remitted to the second respondent to be determined according to law. On 20 November, 2017 the applicant filed an amended application for review which made wholesale changes to his original application for review. Further, by his written submissions filed on 15 January, 2018 he added more grounds of review. His written submissions, however, have the flavour of having been prepared for use in another matter because they refer to matters that do not appear relevant for the present proceedings. Nonetheless, to the extent that the applicant requires leave to pursue his new grounds (in both his amended application and his written submission) the applicant has that leave. The first respondent did not oppose the grant of leave.
The applicant is a Bangladeshi national of Bengali ethnicity and is a Sunni Muslim. He claimed that he was forced to leave Bangladesh because he feared harm from the Awami League who he claimed had harmed him on two separate occasions.
In his visa application, subsequent interviews and statements the applicant claimed that his father was a supporter of the Bangladesh National Party. Although his father was not a member of the BNP, he would attend BNP functions, rallies, meetings and demonstrations. His father was considered by local people to be an active supporter of the BNP. However, although his father was a supporter of the BNP, the applicant was not interested in politics and had no political affiliations.
The applicant claimed that he was attacked by members of the Awami League on two occasions. The first occasion was in 2010. The applicant was helping his friend with his chicken farm when members of the AL approached him and asked him to associate with them rather than the BNP. When the applicant told them he had no interest in politics and no involvement with any party, he says they attacked him. He claims that they kicked and hit him and lacerated his leg with a small knife.
The second occasion was in 2012. The applicant was taken outside a welding shop, where he worked at the time, and attacked. This was precipitated by the applicant declining an invitation to come to one of the AL’s events on that day. The applicant had said that he could not come as he needed to stay at work to support his family. When he refused, they attacked him and kicked, hit and beat him to the extent he needed stitches.
The applicant claimed that supporters of AL had attacked him on both occasions because the party affiliations of people were well-known in his town. The applicant also claimed that two of his brothers have been attacked because they were associated with the BNP.
He claimed that in the period between the second attack and leaving for Australia (a period of about 12 months) he kept a low profile avoiding the AL. He said that he did not contact the police in Bangladesh because they are corrupt, would have asked him for money and not helped him. He could not ask the BNP for help as he was not associated with them.
He claimed that he cannot relocate anywhere else in Bangladesh because that would mean leaving his family, leaving them without support and he claimed that in Bangladesh it is extremely difficult to move. He would have to sell his property and this would make the AL suspicious and make him a greater target. He feared the AL on his return to Bangladesh as they perceive him as being associated with the BNP. He claimed that he could not convince them that work commitments prevent him from attending AL events.
The second respondent accepted that the applicant’s father supported the BNP on a basic level by voting for them and attending the occasional rally, meeting or demonstration.
However, the second respondent was otherwise not willing to accept any material aspects of the applicant’s claims. It considered that the applicant provided only vague general statements as to why his father was important to the BNP and made no mention of his father’s involvement in BNP politics in his arrival entry interview despite being asked whether he or any family members had been associated or involved with any political groups.
The second respondent considered that the applicant’s failure to mention the 2010 or 2012 attacks in his arrival interview was significant. He had said in his arrival interview that the reason he left Bangladesh was because he could not support his family in Bangladesh and he came to Australia so that he could work and send money home. The second respondent was not satisfied that if the applicant was genuinely fleeing to Australia to obtain protection that he would not disclose his fears when given the opportunity to the interviewing officer.
Further, the second respondent found that given that the applicant’s father did not have a high profile connection with the BNP, it was implausible that the applicant would be attacked to get back at his father. Nor was the second respondent willing to accept that the applicant’s brothers (one of whom had travelled to Malaysia) had been harmed for political reasons.
The second respondent was unimpressed with the applicant’s description of the 2010 attack. It thought the description was simple, generic and lacking in substance. Further, there were a number of inconsistencies in the applicant’s description of the 2012 attack.
The second respondent had regard to country information indicating that a significant number of Bangladeshis seek higher wages overseas. Overall, the second respondent considered that the applicant’s claims lacked credibility.
After making those findings, the second respondent then had to consider whether it was satisfied that the applicant (as a relative of a low level BNP supporter who departed Bangladesh unlawfully) was a real chance of sustaining harm should he return there. After looking at the relevant country information the second respondent was not so satisfied. The second respondent said (footnotes omitted):
30. I have not accepted that the applicant’s father was well connected to the BNP or that he always associated with BNP members or went to BNP events. I have not accepted the applicant was attacked by AL members in 2010 or in 2012 as claimed because he would not join the AL in one of their events or processions or in any capacity. I have not accepted that any of his brothers have been beaten up or harmed by the AL because of his father’s association to the BNP or because they were associated with the BNP and refused to join the AL or their rallies. The applicant has claimed he has no interest in politics and has not been involved in politics in Australia. I am satisfied on his return he will not be politically active. This is not because of any fear of persecution but rather his disinterest in politics in general.
31. I am willing to accept the applicant’s father supported the BNP in a low level capacity. There are no credible reports in the country information before the delegate to suggest that family members or relatives of low level BNP supporters or associates are at risk of serious harm from the AL. DFAT assesses that under the current AL Government BNP leaders and JI members are subjected to a high level of official discrimination during periods of heightened political tension, particularly national elections. BNP supporters or members in rural areas are subjected to a low level of violence associated with AL extortion. The applicant is not a BNP supporter or member. In 2015, the AL arrested thousands of BNP and JI members and initiated legal proceedings against most senior BNP members, including Khaleda Zia. The applicant’s father is neither a BNP leader nor a BNP member. I am not satisfied there is a real chance the applicant will be seriously harmed by AL activists and/or members or because of his father’s low level involvement with the BNP on his return to Bangladesh.
The second respondent rejected the applicant’s claim that there was a real chance of serious harm if he returned by reason of him being a failed asylum seeker (footnotes omitted):
32. I accept the applicant left Bangladesh without a valid passport by boat from Chittagong. Although the applicant did not claim to fear harm because he left Bangladesh unlawfully and that he returned might be perceived as a failed asylum seeker having claimed asylum the matter was considered by the delegate. I am not satisfied that there is a real chance he will suffer serious harm on his return to Bangladesh because of this. Country information before the delegate states that Bangladeshis require a valid passport to depart from Bangladesh. The Emigration Ordinance of 1982 makes it an offence to department Bangladesh other than in accordance with the procedures laid down by the Act. DFAT is not aware of any cases in which authorities have enforced these provisions. On the evidence before me, I am not satisfied there is a real chance that any penalties will be enforced against the applicant, or that he will suffer any other harm as a consequence of any illegal departure.
33. In addition, DFAT assesses that most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia. The applicant has not engaged in high profile political activities outside Bangladesh nor has he been convicted of war crimes in absentia. I am not satisfied that the applicant faces a real chance of any harm as a returning asylum seeker who departed unlawfully or a returning failed asylum seeker who departed unlawfully.
The second respondent concluded that the applicant did not meet the elements of the definition of refugee in s.5H(1) of the Act. Accordingly the applicant did not, according to the second respondent, meet the requirements of s.(36)(2)(a) of the Act.
Nor was the second respondent satisfied that the applicant met the complementary protection criteria:
I have not accepted the applicant’s claim that he was attacked in 2010 or in 2012 by AL members because of his father’s connections to the BNP or because of his refusal to take part in AL rallies. I have found that the applicant does not face a real chance of suffering serious harm, or harm of any kind, from the AL, or as result of his father being a low level supporter of the BNP or for his illegal departure from Bangladesh, or as a returning asylum seeker now or in the foreseeable future. There is, similarly, no real risk that the applicant would suffer significant harm upon his return to Bangladesh on these bases.
Grounds of review
The applicant’s grounds of review are set out in a list of eight matters followed by a number of matters under the heading “Particulars”. Those matters are as follows:
Particulars:
second respondent unreasonably raised doubt over my claims for political opinion. The Department and the Tribunal misunderstood or misconstrued the facts which was effect the decision.
And for the safety of my life I forced to came Australia by boat. When it became worse, I decided to leave Bangladesh.
I argue that the Department and the second respondent asked many irrelevant questions to test the credibility of my evidence.
The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. Sometimes I was nervous and confused at the time of interview with the Department & the tribunal. I did not understand the question properly.
For the protection of my life and I became serious target by the Police, Awami League gang and their activist.
The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question.
I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.
I did not collect the second respondent interview CD. After received the CD, I will provide the transcript of second respondent hearing.
I will address the particulars where it seems appropriate when considering, in turn, the grounds of review.
The first ground of review is in the following terms:
1. In making decision, the Immigration Assessment Authority acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
The applicant does not identify the relevant considerations that he asserts the second respondent did not take into account. The material before the second respondent comprised the material referred by the Secretary under s.473CB of the Act, which the second respondent considered in its conduct of the review as required by s.473D8(1) of the Act. The applicant did not seek to put any new information before the second respondent. The second respondent’s reasons for decision reflect that it has given consideration to the information given by the applicant in his visa application, the protection visa interview and the arrival entry interview. The second respondent also had regard to the country information that was before it.
I am not satisfied that the second respondent failed to take into account any relevant consideration.
The second ground of review is in the following terms:
2. The second respondent failed to assess my harm on the basis of my claims.
Even a cursory examination of the second respondent’s reasons reveal that this claim has no substance. In my view, the second respondent addressed each of the claims made by the applicant.
The third ground of review is in the following terms:
3. The tribunal failed to assess the present situation in Bangladesh since I left.
Again, an examination of the second respondent’s reasons reveal that this is not so. The applicant has not identified what it is he alleges about the situation in Bangladesh after his departure that the second respondent purportedly failed to assess. The applicant bears the onus of persuading a Court that a matter has been overlooked and of establishing jurisdictional error. I accept the first respondent’s submission that the applicant has not discharged that onus in this case.
Further, as the first respondent submits, the central reason why the second respondent found that there was no real chance that the applicant would face a real chance of harm on return to Bangladesh was its rejection of the applicant’s claims related to his father’s support of the BNP and the attacks on him and his brothers, together with the applicant’s own evidence that the applicant is disinterested in politics in general. Those factual conclusions did not depend on any assessment of the present situation in Bangladesh, but instead involved an evaluation by the second respondent of past events. Determining what is likely to occur in the future will in most cases require findings as to what has occurred in the past: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at [57].
The second respondent also considered the evidence before it relating to the circumstances to which the applicant would return in Bangladesh. The second respondent considered DFAT’s “Country Information Report Bangladesh” published 5 July, 2016 throughout its decision when conducting its refugee and complementary protection criteria assessments.
The fourth ground of review is in the following terms:
4. The tribunal decision effected by the denial of natural justice.
There is nothing in the material before me to suggest that the second respondent did not afford the applicant natural justice, having regard to the statutory framework within which the second respondent conducted its task. Section 473DA of the Act provides that Division 3 of Part 7AA of the Act is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the second respondent. The provision operates to exclude the common law natural justice hearing rule from the conduct of reviews before the second respondent: AFK16 v Minister for Immigration and Border Protection [2016] FCCA 1826; DBA16 v Minister for Immigration and Border Protection [2017] FCCA 320; DDK16 v Minister for Immigration and Border Protection [2017] FCCA 353.
In the particulars the applicant complains about the way the second respondent conducted the “hearing”, alleging it asked confusing and irrelevant questions of the applicant. However, the particulars are misconceived because the second respondent did not conduct a hearing and nor was it required to do so. It conducted the review on the papers in accordance with s.473DB of the Act.
To the extent that the applicant’s complaints relate to the interview before the delegate, the second respondent was prepared to disregard inconsistencies in the applicant’s evidence regarding BNP and AL flags on the basis that the applicant was confused by the delegate’s style of questioning on that issue. That demonstrates that the second respondent gave realistic and genuine consideration to the materials before it.
The applicant’s written submissions make arguments based on s.424A and 424AA of the Act. However, those sections have no application here. The review was conducted under part 7AA of the Act. Moreover, the applicant develops his argument by reference to a suggestion that he had become a member of the BNP. However, the material before me indicates that the applicant never claimed to be a member of the BNP. He disavowed such a notion. This submission tends to suggest that the written submissions relied upon by him have not been prepared for this case.
Further, the applicant submits that the second respondent denied him a hearing and did not make inquiries in circumstances that demanded that the second respondent make its own inquiries. Neither of these arguments can be made out. The second respondent was operating pursuant to Part 7AA of the Act and it was not obliged to conduct a hearing or obtain any additional information than that transmitted to it by the Secretary of the Department.
There is nothing in this ground of review.
Ground 5 is in the following terms:
5. The tribunal made decision without any verification of my genuine documentary evidence and statement.
The applicant’s written submissions suggest that the second respondent rejected the genuineness of certain documentary evidence before it. But that is not so. I can find no reference in the reasons to the second respondent rejecting the authenticity of any documents provided by the applicant. As the first respondent points out, the documentary evidence that was before the second respondent was the documentary evidence that the applicant provided with his application for the visa. Those documents go to the applicant’s identity and nationality. The second respondent did not take issue with the identity or nationality of the applicant and did not question the veracity of the documents he provided.
If the documents to which the applicant is referring are his statement and visa application it is well established that the second respondent was not required to uncritically accept the submissions of the applicant, and was entitled to make findings of fact reasonably open to it on the evidence: SZVTQ v Minister for Immigration and Border Protection (2016) FCA 929.
This ground reveals no jurisdictional error.
Ground 6 is in the following terms:
6. The Tribunal decision is identical or similar or based of the Departmental decision. Complete violation of merit review procedure. As Previous reported cases of federal court findings that the complementary protection obligation.
It is open to the second respondent to give similar reasons to those in the delegate’s decision based on its own consideration of the material before it. That the second respondent reached similar conclusions to those of the delegate does not indicate legal error. As I have set out above, I am satisfied that the second respondent engaged with the material before it and gave it proper consideration. There is nothing to indicate that it simply repeated the delegate’s decision.
I accept the first respondent’s argument that the second respondent’s reasons in respect of why it rejected the applicant’s claims demonstrate an active engagement with the review material. There is nothing to suggest the second respondent did not consider the applicant’s claims, or the review material, independently from the delegate’s decision.
This review ground should fail.
Ground 7 is in the following terms:
7. And also, second respondent decision dated 01/08/2017 did not follow the proper guideline of procedure and also the Federal court findings’ in the judgement that complementary protection obligation of Australia.
It is difficult to understand the focus of this ground. To the extent that it seeks to attack the second respondent’s findings on the complementary protection criteria, it is clear from the second respondent’s reasons that it applied the correct legal test in considering the applicant’s claims against the criteria in ss.36(2)(a) and 36(2)(aa) of the Act.
The second respondent found that there was no real risk the applicant would suffer significant harm on his return to Bangladesh, based on factual findings in respect of the applicant’s claims which were open to it. Therefore there was nothing to which the criteria for complementary protection could attach.
Considering the second respondent’s findings and reasoning, the overall conclusion that Australia does not owe protection obligations to the applicant is a conclusion that was inevitable.
The applicant’s written submissions refer to a decision of Hill J in NAQS v Minster for Immigration & Multicultural & Indigenous Affairs (2003) 77ALD 424. He submits (faithfully reproduced):
8. In NAQS,, Hill J held at [28] that the word “obtains” in 426(3) suggests that the provision “relieves the Tribunal from an obligation itself to seek out a witness for the purpose of that witness giving evidence but is silent concerning the obligation of a Tribunal to listen to evidence which an applicant wishes the Tribunal to hear whether evidence is relevant in the proceedings.” At [29] his Honour said, “it is implied in Division 4 of Part 7 of the Act and indeed from the very obligation imposed on the Tribunal to entertain a ‘review’ that an applicant is entitled to require the Tribunal to have regard to oral evidence of a witness called by the applicant, although only if that evidence is relevant lo the issues before the Tribunal.”
These submissions have no relevance to the present review because it was not conducted pursuant to Part 7 of the Act, but rather Part 7AA of the Act, which has its own structure and requirements quite separate of those of Part 7.
Ground 8 is in the following terms:
8. The honourable second respondent member DECISION DATED 01/08/2017, in her FINDINGS AND REASONS ( page 3 paragraph 8) clearly indicate that the second respondent also finds the letter of support from BNP to be problematic and has given it no weigh. Unfortunate the honourable member did not recognized Bangladesh is a level of third world country and also most of the people are not well educated. In my review decision, the second respondent did not review with the complementary protection criterion. Because Federal Court recent case reference SZGIZ v first respondent for Immigration and Citizenship (2013) 212 FCR 235. The referred case by honourable second respondent is not very much similar to my clams. I will put details in my written submission later.
This ground best demonstrates that the applicant’s written submissions have not been prepared with an eye to his particular claims and application. Whilst the applicant contends that the second respondent gave no weight to a “letter of support” from the BNP, there is nothing to suggest that any letter of support from the BNP before the second respondent when it made its decision. None appears to have been given to the delegate either. None was produced to this Court as evidence of something that the second respondent overlooked.
The applicant draws the Court’s attention to [8] of the second respondent’s reasons, but that paragraph does not deal with any letter or other documentary evidence in relation to the BNP.
The applicant also contends that the second respondent did not recognise Bangladesh as a third world country where most of the people are not well educated. As the first respondent submits, the applicant has not identified how that was a relevant consideration and if it was relevant, how any particular finding about that matter would have impacted upon the outcome of his review.
As the first respondent points out, the second respondent extensively considered the relevant country information on Bangladesh, noting that there are perceived poor economic prospects within Bangladesh. No inference should be drawn that the second respondent failed to consider that matter.
The first respondent’s written submissions deal with the applicant’s reference to SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 in the following way:
78. The case referred to by the applicant in this ground, SZGIZ v first respondent for Immigration and Citizenship (2013) 212 FCR 235, considered whether a former unsuccessful protection visa applicant could make a second valid application, provided that application was based on a different criterion from that on which the original application had been made. The Full Federal Court held that a second application could be made, but the Act was subsequently amended to prevent this. This case is entirely irrelevant to the applicant’s situation.
I accept that submission.
Conclusion
The applicant’s judicial review application and his written submissions do not demonstrate that the second respondent’s decision is affect by jurisdictional error. The application must be dismissed with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.
Date: 21 June 2018.
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