DVO17 v Minister for Immigration

[2018] FCCA 486

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 486

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: DVO17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 840 of 2017

Judgment of: Judge Vasta

Hearing date: 19 February 2018

Date of Last Submission: 19 February 2018

Delivered at: Brisbane

Delivered on: 19 February 2018

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the Application filed 28 August 2018 be dismissed.

2. That the Applicant pay the First Respondent’s costs in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 840 of 2017

DVO17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 28 August 2017, the Applicant, DVO17, asked this Court to review a decision of the Immigration Assessment Authority (“the IAA”), which itself affirmed a decision of the delegate not to grant DVO17 a safe haven enterprise visa.  As I go through the facts, it will become apparent that this is an application that is out of time, and there has been no application for an extension of time, and the Applicant has not asked for one verbally.

2. Notwithstanding that, I will assume that he would have asked for it if he had understood that he needed such an extension, and I will proceed to look at the matter on that basis; that is, giving him an extremely generous concession. I am conscious of having regard to the rights of the Minister, but do not see that the way I will deal with the matter is unfair to the Minister.

3. The Applicant is a Bangladeshi national.  He was born in 1988 in a village in the Pabna district in Bangladesh.  He became a supporter of the ideologies of Jamal Islami (JI).  When he was young, he was a person who would attend party meetings at school and college and he attended protests when he could.  He distributed pamphlets to assist and support opposition of the Awami League at that time. 

4. He claimed that because of this support in 2007, his father was the subject of a visit by four or five Awami League supporters who came to the house looking for the Applicant.  It would seem that the Applicant was about 19 years of age at this time.  The Applicant claims that these four or five supporters demanded that the father open his door because they wanted to find the Applicant, and that his father lied and said he didn’t know where the Applicant was.

5. The Applicant had run out the backdoor and these persons told the father that they would kill the Applicant if the Applicant continued to support JI.  Notwithstanding these threats, the Applicant says that he still continued to attend party meetings and protests, and he became a target of the Awami League, and groups of men would come to the house looking for him and asking his family, neighbours and friends where he was.

6. Strangely enough, he said that he didn’t go to the police because the Awami League was the governing party and ruled the police.  He didn’t feel safe at home, and so began to live at his grandmother’s.  His family members were regularly harassed to reveal his location.  Because a government official told his father that they knew where the Applicant lived, the father told the Applicant that it was no longer safe.  The Applicant then applied for a work permit and left Bangladesh for Malaysia in 2007.  He stayed there until 2012.

7. He claimed that the sponsoring company in Malaysia retained his passport, so he went to the Bangladeshi embassy to apply for a passport to return home.  Whilst he was away for those five or more years, he claims that Awami League supporters came to his house searching for him on multiple occasions.  He returned back to Bangladesh in December 2012 and immediately took up his support of JI.  He said that on 23 February 2013, he attended a political function held by JI opposing the Awami League.  At that function, there was an attack and two of his friends were killed.

8. The Applicant decided that it was no longer safe for him to remain in Bangladesh, and he left on 11 March 2013, some three months or less after his return to Bangladesh.  He arrived in Australia on 8 April 2013 as an unauthorised maritime arrival. 

9. He told the IAA, in January 2016, that Awami League supporters approached his father at his home, and demanded that the father, the mother and the brother reveal the location of the Applicant, and when they refused to do so they were physically assaulted, and his father and brother were stabbed.

10. The Applicant made the application for a protection visa.  The visa, as I’ve indicated, was refused by the delegate and, because it was a fast track decision, the Minister referred this matter to the IAA.  The IAA looked at the matter.  They thoroughly assessed the claims that the Applicant made. 

11. At the beginning of the hearing, the Applicant presented some other material to the IAA.  There was some other country information that the legal representative wanted to put before the IAA, and there was also a previous decision of the IAA in a totally different matter that was not before the delegate where the IAA member referred to political violence in general in Bangladesh and gave some statistics for those people who were killed or injured between 2008 and 2014.

12. The IAA did not consider that this was new information or information that was not previously known, notwithstanding that the IAA decision itself was made between the time that the delegate made the decision and this IAA hearing occurred. 

13. The other IAA decision was simply referring to country information which had been put before it.  There was no reason given as to the reason why that information that was referred to in the other IAA decision, nor any of the other material which was known before the delegate had made their decision, was not before the delegate.

14. In those circumstances, the IAA was not satisfied that there were exceptional reasons for considering that information. 

15. Whilst the IAA went into great detail, it seemed that they were quite sceptical of a number of the claims that the Applicant had made as to his pre-2007 activities.  The IAA looked at country information and determined that the Applicant would have been in the class of “worker” for JI.  There were classes of membership, and workers were, in effect, the lowest class because they were really volunteers who would do a number of tasks for JI.

16. The IAA quoted some statistics to show that there were about half a million workers and 5000 full members.  Given that the description that the Applicant gave as to what he was doing for JI or ICS, the student wing of JI, the description most properly fitted the description of a worker.  The IAA found that it was quite unbelievable that this sort of attention, that the Applicant says that the Awami League was focusing upon him, would have been focused upon a mere worker, given that there are half a million of them in the country.

17. The other aspect that the IAA looked at was that the Applicant said that he did not go to the police because the police were a part of the government, and the Awami League was in government and the police were simply puppets.  The country information is that when the Applicant left Bangladesh in 2007, the Awami League was not actually in power.  There was an election in 2008, and there was a caretaker type arrangement, and the Awami League did not form government until 2009, so the excuse of not going to the police does not seem credible either. 

18. The IAA came to the conclusion that, given the Applicant took a work permit to leave Bangladesh and go to Malaysia, it was more likely that he left for work purposes rather than any danger to himself.

19. The IAA then looked at what happened when the Applicant returned.  Given that he was back in the country for some three months, the IAA found it very unlikely that he would have, or could have, been able, in that short time, to raise his profile to such a status that he claims he has achieved. 

20. The Applicant also gave to the IAA a number of documents including documents from the fathers of the two friends that he claimed were brutally killed by the Awami League in February 2013. 

21. Those documents from the two fathers were examined quite closely by the IAA, to a point where the IAA found that they were just so short on detail that they lacked any cogency to aid the claims of the Applicant. 

22. The Applicant’s own father also gave a document to the Applicant to give to the IAA, but again, this also lacked some detail. 

23. There were also significant discrepancies between what it was that the Applicant was now saying had occurred and what it was that he said in his arrival interview back in April 2013, and I will not go through all of those discrepancies. 

24. Given all of those matters, it was not surprising that the IAA was not satisfied that the incidents happened as the Applicant claimed, and while the IAA accepted that the Applicant and the father and possibly the brother took part in the protest in 2013, the IAA was not satisfied the two friends were killed as claimed.

25. As far as the attack in January 2016 by AL supporters, the IAA came to the conclusion that the Applicant had fabricated this claim.  It seemed quite incongruous that the Applicant left the country in March 2013 and just under three years later was, in effect, the first time that there had been any trouble with regards to AL members looking for the Applicant. 

26. The photographic evidence that was given to the IAA was, in the opinion of the IAA, staged and there was no weight given to them. 

27. Having made all of those conclusions, it really is no surprise that the IAA did not find that the Applicant was a person who had a well-founded fear of persecution, and so the refugee criteria was not fulfilled, and similarly the complementary protection assessment criteria was also not fulfilled.

28. The Applicant had three grounds for this application. 

29. The first was that the second respondent incorrectly found that information presented to it was not new information which could, and should, have been put before the first respondent, and thereupon fell into jurisdictional error by failing to consider or ignoring that relevant information. 

30. This ground is really reiterating the factual scenario that I recounted when the Applicant first went to the IAA. 

31. It is, in my view, open for the IAA not to have been satisfied that this was new information at all, or that there were no exceptional circumstances to justify considering the information because it could have been before the original decision-maker.  That information, which is in the court book, is neatly summarised by the respondent as being a claim by a supporter of the Bangladeshi National Party that he feared harm from Awami League supporters. In that case, the IAA reviewed country information to ascertain the nature and extent of violence perpetrated against BNP supporters.

32. As is noted by the respondent, there was no specific reference to country information that indicated that low-level supporters or workers of JI or ICS were being targeted.  It can hardly be said that the information would have changed the assessment of the IAA in the present case given that there was no evidence that a person, in the situation that the Applicant was in, was currently being targeted. 

33. In those circumstances, I am not satisfied that ground 1 has merit. 

34. Ground 2 was that the second respondent erred by failing to give genuine and realistic consideration to an integer of the Applicant’s protection claim, namely that he, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, has a real risk of suffering significant harm. 

35. With regard to this ground, it seems to me that the Applicant is attempting to have an impermissible merits review.  The findings of the IAA made were reasonably open to it.  Those findings show that there was a low risk of harm. 

36. The IAA then also went through the country information from DFAT.  That country information spoke of what is occurring to persons who have left the country illegally and may have made claims of asylum in other countries but were being returned to Bangladesh. 

37. That seems to me to show that IAA did, in fact, give a lot of attention to the claims that the Applicant had made, the level of risk that he faced because of making the claim, and thirdly, the risk to the Applicant being returned to the country of Bangladesh. 

38. It seems to me that there is no merit in this ground either.

39. The third ground is that the second respondent erred by failing to correctly construe and deal with the claim or component integer expressly raised by the Applicant or otherwise squarely raised on the material before it, and/or failed to take into account the relevant consideration. 

40. It seems to me that that is really, again, another attempt at having an impermissible merits review.

41. The Applicant appeared unrepresented today, and I have been very grateful for the assistance of the interpreter.  It is clear that someone else has compiled these grounds, as the Applicant really had very little knowledge of what it was that was in those grounds. 

42. Instead, I asked him what it was that he wanted to say.  He made the bold assertion that the IAA made a wrong decision because not everything that he said was taken into consideration.  When I asked what it was that was not taken into consideration, he replied that the IAA:

    “…did not accept what I was saying in spite of the documentation that I provided.”

43. The Applicant is simply a person who is not happy with the factual conclusions that were made.  The conclusions that the IAA made were clearly open to it, notwithstanding that the Applicant feels somewhat aggrieved by them.

44. The Applicant then claimed to me that there has been another incident of violence that has occurred to his family since the IAA hearing.  He said that it was an attack that they have reported to police – that is how serious it is. 

45. This statement is somewhat troubling, because firstly, it was not information that was before the IAA, obviously, and cannot be a part of what I am deciding, but secondly, if it is that this is another attack, the Applicant tried to show how serious it was by the fact that it had been reported to the police, after telling the IAA that there was no use reporting matters to the police as the police were puppets of the Awami League government. 

46. If it is that an attack happens and there is sufficient faith that the police are going to investigate and look for the perpetrators of that crime, it does seem to take away from the dire picture that the Applicant was painting of what life would await him in Bangladesh.

47. But, again, I simply mention that in passing, because, as I explained to the Applicant, I cannot look at any information such as that. 

48. The Applicant then said that he wanted to refer to other information that he did not have that was on a computer by email that he wanted to give to the Court.  Again, this seemed like it would be new information, but the Applicant did not even bring it to Court. 

49. This matter was mentioned by the Registrar on 11 September last year, some five months ago.  At that time, it was obvious that the Applicant was out of time for this application, and the Registrar made an order that he could file an amended application; in effect one to ask for an extension of time.

50. The Applicant did not do that.  The Registrar ordered that he submit some written submissions.  Again, the Applicant did not do that.  For him to turn up here at the hearing today and then say that he wanted to put more material before the Court, which he said that he did not have because he did not bring his computer here to Court, is unbelievable.

51. The Applicant suggested that I should simply adjourn this matter for more time so that he could put that before the Court when it was obvious that such information was not able to be considered by me. This is, in my view, a tactic to put off what the Applicant knew to be the dark day, and so I did not allow any adjournment.

52. The Applicant then claimed – almost as a last gasp matter – that he did not follow the IAA decision.  Again, he was the one who put the matter before this Court;  he was the one who appeared before Registrar Belcher, and he has had five months to get his house in order.  To now claim on the doorstep of the Court, after all his other arguments were failing, that he did not follow the IAA decision was, to my mind, a very cynical act to, again, attempt to put off the dire day.

53. Given all of those matters, I cannot find any jurisdictional error in the decision of the IAA.  Therefore, there has been no excuse as to why this application was filed out of time. 

54. Whilst there is no prejudice to the Minister, I also should look at whether this was an argument that the Court should be looking at.  In effect, I have actually looked at the matter as if it were not an application for an extension of time and found that there was no jurisdictional error. 

55. In all the circumstances, I refuse to allow an extension of time, and I dismiss the application.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  5 April 2018