DSO17 v Minister for Immigration

[2018] FCCA 1238

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1238

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority.

Legislation:

Migration Act 1958 (Cth), ss.473DD, 473GB

Applicant: DSO17

Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 793 of 2017

Judgment of: Judge Jarrett

Hearing date: 16 February 2018

Date of Last Submission: 16 February 2018

Delivered at: Brisbane

Delivered on: 16 February 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance.

ORDERS

1. The application be dismissed.

2. 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 793 of 2017

DSO17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a stateless man from Bangladesh.  He is of Rohingya ethnicity.  He arrived in Australia in November, 2012 as an unlawful maritime arrival.  He applied for a protection visa in accordance with the provisions of the Migration Act 1958 but he was unsuccessful before a delegate of the first respondent in securing that visa. He was subsequently referred for a review of that decision by the Immigration Assessment Authority pursuant to the relevant provisions of Part-7AA of the Migration Act.

2. The Immigration Assessment Authority was provided with all of the relevant documents required by the Act. That happened in January, 2017. There were some certificates that were given by the first respondent to the Assessment Authority. Those certificates were given under s.473GB of the Migration Act. Those certificates related to certain documents and information and they certified that the material contained in or covered by the certificates was not to be disclosed to the applicant.

3. Subsequently, on 16 February, 2017 the applicant, via a migration agent, provided a submission to the Immigration Assessment Authority. The Authority had regard to the submission but dealt with it in accordance with the provisions of s.473DD of the Migration Act. It was not new information for the purposes of the relevant provisions of the Act and was dealt with as argument. 

4. On 21 July, 2017 the Immigration Assessment Authority refused to grant the applicant a protection visa.  The Authority’s decision reveals that it accepted that the applicant was a stateless person from Bangladesh of Rohingya ethnicity.  There was some uncertainty expressed by the Authority about those matters and the Authority’s reasons for decision canvass the basis upon which that uncertainty arose but it decided those matters in the applicant’s favour notwithstanding those difficulties. 

5. The Assessment Authority then went on to consider the claims that the applicant made about having a well-founded fear of persecution should he be returned to Bangladesh.  He claimed that he feared harm from his local community because of his lack of Bangladeshi citizenship and because of his ethnicity.  The Authority accepted that there were some difficulties experienced by Rohingyan persons in Bangladesh. 

6. However, the Assessment Authority, after it referred to relevant material to which it was entitled to refer published by the Department of Foreign Affairs and Trade, determined that the risk to the applicant was that he might be subjected to a low level of societal discrimination and that the material before it demonstrated that there was a “high level of tolerance between Rohingyas and Bangladeshis with intermarriage being common.” 

7. The Assessment Authority expressly noted that the applicant’s parents were from different communities.  His mother was Bangladeshi, his father was from Myanmar.  It determined that, having regard to its findings about the level of risk faced by a person such as the applicant in Bangladesh and having regard to the material from the applicant contained within his visa application and his subsequent declarations about where he had lived from birth until 2011, it determined that the applicant did not have a well-founded fear of serious harm from the local people as a result of his Rohingya ethnicity should he return to Bangladesh. 

8. The applicant also made claims that he feared harm from employers.  The Assessment Authority expressed some concerns about the applicant’s claims about those matters and ultimately the Authority was not satisfied that the applicant faced a real chance of serious harm from prospective employers on return to Bangladesh as a result of his Rohingya background.  Again, coming to that conclusion, the Assessment Authority made reference to and relied upon material from the Department of Foreign Affairs and Trade. 

9. It concluded, therefore, that the applicant was not a refugee for the purposes of the Migration Act and he was not entitled to a Safe Haven Enterprise Visa – the type of protection visa for which the applicant had applied.

10. The Assessment Authority also considered the applicant’s claims for complementary protection but determined that the applicant did not meet the criteria there either. 

11. From that decision the applicant brings this application for judicial review.  In his application for review he has set out his claims, rather than any identifiable grounds of review.  He asserts that he fears persecution and that there is a real chance that he would be persecuted should he return to Bangladesh.  He claims that Australia owes him protection obligations.  None of those matters, however, amount to the identification of a proper ground of review for the purposes of this application.  Whilst he says that the decision of the second respondent was affected by legal error, he does not identify that error.  Further, he suggests that the Assessment Authority did not consider relevant information.  He does not identify the information that he says ought to have been considered but was not. 

12. At the commencement of this hearing the applicant gave to me a written document that he says had been emailed to the Court in November of last year.  There is no record of it on the court file but Mr Galloway who appears for the first respondent confirmed that his client received a copy of the document some time in November last year.  His client does not suggest there is any prejudice should I permit the applicant to rely upon it.  I have received the written document.  It is in the nature of a submission.  The first few paragraphs of the document complain that the applicant does not agree with the Assessment Authority’s decision. 

13. The balance of the document seems to deal with the proposition that the applicant is a stateless person who is unable to obtain citizenship in Bangladesh notwithstanding the passing in Bangladesh of an Act of Parliament designed to provide citizenship to people in the applicant’s position.  He points out in his submission that he has never been provided with citizenship documents from Bangladesh and the amendments – the relevant legislative amendments, I presume – in 2009 in Bangladesh are of no assistance to him. 

14. Those arguments by the applicant are not to the point, however, because the Immigration Assessment Authority in fact determined that he was a stateless person.  It accepted that he was not entitled to Bangladeshi citizenship and that the 2009 amendments have not been made retrospective so that the applicant in any event did not have the benefit of them.  So those matters were determined in the applicant’s favour by the Assessment Authority.  The balance of the applicant’s submission talks about the applicant’s desire to remain in Australia rather than return to Bangladesh. 

15. Having regard to the applicant’s submissions, the application for review, and, more importantly, the terms of the Immigration Assessment Authority’s reasons for decision, it is apparent that there is in fact no error in the Assessment Authority’s decision; certainly no error which would attract the description of jurisdictional error sufficient to enliven the jurisdiction of this Court to grant the relief the applicant claims. 

16. In those circumstances it is apparent – indeed, it is inevitable – that the application must be dismissed. 

RECORDED  :   NOT TRANSCRIBED

1. In applications of this nature costs ordinarily follow the event unless there are special circumstances to demonstrate that the application of the usual rule is inappropriate.  The respondent here says that he has no money and no job.  Impecuniosity is never generally seen as amounting to special circumstances sufficient to displace the application of the usual rule.  Costs should follow the event. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 16 February, 2018.

Date: 17 May 2018