Eil18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1181
•12 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1181
File number(s): PEG 202 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 12 December 2023 Catchwords: MIGRATION – Whether Immigration Assessment Authority erred by finding that applicant had never been a supporter of a political party as opposed to making findings as to nature and degree of support Legislation: Migration Act 1958 (Cth) ss 5H, 36, 483DC Cases cited: BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331
WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 22 May 2023 Place: Sydney Counsel for Applicant: Mr N Barron Counsel for Respondents: Mr T Lettenmaier Solicitor for Respondents: Sparke Helmore ORDERS
PEG 202 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIL18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
12 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application filed on 21 October 2022, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) dated 12 October 2022, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Safe Haven Enterprise Visa (Class XE) (Subclass 790) (visa).
BACKGROUND
The background and summary of the Authority’s decision is derived from the parties’ written submissions which, unless otherwise indicated, do not appear to be in dispute.
The applicant was born in Bangladesh and is a Muslim with Bengali ethnicity (Court Book (CB) 64 and 102).
The applicant’s claims for protection stem from his asserted connection with the Bangladesh Nationalist Party (BNP) and a corresponding opposition to the Awami League (AL) (being Bangladesh’s governing party). The applicant claimed to have been the victim of various crimes and indignities perpetrated by persons affiliated with the AL as a result of being identified as a supporter of the BNP (CB 64). He also asserted that Bangladeshi authorities provided no support or protection to him, due to their own connections to the AL. In support of his visa application, the applicant provided a letter purportedly written by the Secretary General of the BNP (CB 180) (support letter).
The applicant claimed that, on several occasions between 2010 and 2012, gangsters from the AL came to his father’s shop (where he was working) and demanded money. When the applicant did not comply, they attacked him, stole money and destroyed the interior of the shop. They told him that he could not do business without “paying his share” (CB 104). The applicant claimed that on another occasion he was injured with an axe and had woken up in hospital (CB 64 to 66 at [7] to [15]). The applicant said that he was scared to go to the police because the men who had attacked him threatened to kill him if he did so (CB 65 at [9]).
The applicant claimed that in March 2013 AL members attacked his family home (CB 66 at [18]). The applicant claims that his mother was hit in the face causing permanent damage to her eye, and that the AL members said his father was a refugee and that he must got back to where his father came from (being India) (CB 66 to 67 at [16] to [17]). The applicant claimed that these attacks were because the AL knew he was a BNP supporter (CB 66 at [15]).
The applicant said he sought help from the police, but they did not act because they were under pressure from the local Minister and political party (CB 67 at [18]). The applicant said that he was unable to relocate because his life would be in danger no matter where he goes, and that the authorities are unable to protect him because they are under the control of the AL.
In 2013, the applicant left Bangladesh, arriving on Christmas Island on 24 March 2013 as an unauthorised maritime arrival (CB 64 and 102). The applicant’s three brothers allegedly left Bangladesh soon after him because they felt unsafe, and the applicant claimed to not know their whereabouts. The applicant’s mother was said to be unable to remain in the village and now lives in hiding with a distant relative in a different part of Bangladesh (CB 168 at [1(a) to (b)]). The applicant claimed that the family’s shop has been taken over by the AL (CB 168 at [1(c) to (d)]).
The applicant said that if he is returned to Bangladesh, he will be harmed by members of the AL (CB 169 at [1(e)]), would have no home, no family or other support in the village and that it would be difficult to find work. The applicant said that because he has only worked in retail and his family shop, it would be difficult to work in a different industry (CB 168 at [1(c) to (d)]). Even if he could find work, the applicant said that he would be the subject of extortion and mistreated if he refuses to pay (CB 169 at [1(e)].
The applicant said he believes that the authorities in Bangladesh keep track of political dissidents and would be aware that he sought asylum in Australia. The applicant said he was concerned they will be aware he showed a video detailing disappearances in Bangladesh at an interview (CB 171 at [2(f)] and 190 at [28 point 18]).
On 7 June 2018, a delegate of the Minister refused to grant the applicant a visa. That decision was subsequently affirmed by the Authority (first Authority decision). The first Authority decision was quashed by the Federal Court of Australia on 27 June 2022 (see EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736).
The Authority’s decision
On remittal, the Authority obtained the following new information (CB 185 at [12] to 188 at [26]):
(a)new and updated country information;
(b)a written submission from the applicant;
(c)various documents provided by the applicant; and
(d)conducted an interview with the applicant pursuant to the discretion found in s 483DC(3) of the Migration Act 1958 (Cth) (Act).
The Authority noted that an audio recording of the applicant’s arrival entry interview (held on 21 April 2013) was included in the review material provided to the Authority, although there was some uncertainty as to whether this audio recording had been before the delegate (CB 185 at [9]).
On the basis of the information before it, the Authority ultimately concluded that the applicant was not, and had never been, a supporter of the BNP. It also concluded that he would not support the BNP in the future, should he return to Bangladesh. This conclusion differed from the decisions of the delegate and the first Authority decision (CB 105 and 139) and was made for the following reasons.
First, that the applicant’s claims regarding his involvement with the BNP varied over time. The Authority recorded the following at [45] (CB 193):
In his 2016 statement of claims the applicant stated he was supporting the BNP but was not an active person. At the IAA interview he added that he was a member of the BNP. When asked if he would support the BNP in the future, he stated he would because he loved the BNP.
The evolution of the applicant’s claim was said to have escalated from “devoted worker” to “member”, that he “loved” the BNP, attended meetings and protests, chatted with people and gave unspecified amounts of money (CB 193 to 195 at [45] to [49] and [54]).
Next, the Authority observed there to be no other evidence as to whether the applicant had sought registration as a member of the BNP, and it considered his oral evidence “basic” and “limited”. While the applicant had some knowledge of the structure, operations and status of the BNP, the Authority observed that such information existed in the public domain. The Authority also noted that the applicant’s limited information was concerning given the political climate in 2007 (CB 194 to 195 at [49] to [50] and [53]).
After having rejected the applicant’s claims in relation to his inability to obtain a national identity card (CB 190 to 193 at [29] to [44]), the Authority was concerned that he had not registered to vote in the lead-up to the planned 2007 elections, nor the crucial 2008 election. This was despite the fact that he could have done so in 2007, while the BNP was still in power. The Authority considered this to belie the applicant’s claim to “love” the BNP (CB 195 at [51] and [54]).
In relation to the support letter, the Authority found as follows (CB 193 to 194 at [46] and 195 at [54]):
46. In support of his claim the applicant has provided an undated letter from the Secretary General of the BNP which states the applicant is an honest and devoted worker of the BNP who was tortured by Awami League members and left the country as a result. The BNP letter does not refer to the applicant as a member nor has the applicant provided any evidence of registering or enrolling with the BNP as a member. This letter does not detail any activities the applicant has been engaged in that would cause him to be described as a ‘devoted’ worker or indicate how he has supported the BNP, when or over what period. I also have concerns that the description of being a member or a ‘devoted’ worker is at odds with the 2016 statement description he was not ‘active’.
…
54. …I note the letter of support from the BNP but this does not overcome my concerns. The information before me varies from him being a ‘devoted’ worker (as described in the Secretary General’s letter), to being a member (which is not stated in the Secretary General’s letter), to attending meetings, chatting with people, attending protests and giving unspecified amounts of money at a ‘union level’, to being a supporter but not an active member. I find these variations to be of concern and they add to my concerns about the truth of the BNP claims.
The Authority also found other of the applicant’s claims to be implausible and to lack credibility (CB 197 at [63]).
Overall, the Authority was not satisfied that the applicant met the requirements of the definition of refugee in s 5H(1) of the Act and therefore, s 36(2)(a) of the Act. The Authority concluded that the applicant’s concerns about having to re-establish himself on return to Bangladesh would not amount to serious harm and also not to significant harm as defined by s 36(2A) of the Act. The Authority was not satisfied that the applicant met the s 36(2)(aa) criterion either.
Proceedings in this Court
By an application to show caused filed with the Perth Registry of this Court on 21 October 2022, the applicant commenced the instant proceedings. He was unrepresented when he did so.
On 15 December 2022, a Registrar of the Court made procedural orders which, inter alia, indicated that the matter would be listed for final hearing on a date to be advised. The proceedings were initially in the central migration docket until when, on 9 January 2023, it was docketed to another Judge of this Court (first primary Judge). On 1 March 2023 the first primary Judge made orders requiring the applicant to file and serve written submissions, any amended application and any additional evidence by 9 March 2023. By the same orders, the first respondent was required to file and serve written submissions by 23 March 2023. On 10 March 2023, an Amended Application was filed for the applicant which abandoned the three grounds in the application filed on 21 October 2022 and raised a single ground of review with particulars. The applicant’s written submissions were filed on the same day and, on 22 March 2023, submissions were filed for the first respondent.
Due to the unavailability of the first primary Judge, the matter was transferred to me on 22 March 2023 and relisted for hearing on 22 May 2023 at 2:15pm AEST/12:15pm AWST, by Microsoft Teams. Both parties at hearing were represented by their respective Counsel, the applicant being represented on a direct access basis. The Court Book was tendered by the applicant and received by the Court as Exhibit “1A” and oral submissions were made, which, together with Counsels’ (respective) written submissions, have assisted the Court in the preparation of these reasons.
GROUND OF REVIEW
At hearing, I granted leave to the applicant to rely upon the Amended Application filed on
10 March 2023.
The Amended Application raises a sole ground of review with particulars, as follows:
The decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error, in that the IAA’s decision contained a finding that was unreasonable or irrational because it lacked an intelligible justification.
Particulars
(a) The IAA concluded that the Applicant’s expressed support for the Bangladesh Nationalist Party (BNP) was not genuine, and that the Applicant was not, had never been, and would not in future be a supporter of the BNP.
(b) The information provided by the Applicant included details of his own support for the BNP, as well as a document from the BNP attesting to his connection to the organisation.
(c) While it may have been open to the IAA to question the exact nature and degree of the Applicant’s support for the BNP, there was insufficient material before the IAA to ground the conclusion that the Applicant had never supported the BNP, and that his claims of support for it were ingenuine.
The issue in the review is a narrow one.
The applicant says that the Authority’s “categorical rejection” of his repeatedly asserted connection to/support of the BNP was based on its finding that the applicant had consistently overstated his connection to the BNP and/or that his account of it had gradually distorted over time. In reaching that conclusion, the applicant contends the Authority essentially relied on what it viewed as inconsistencies in his description of the degree of support he gave to the BNP, including that in his 2016 statement, the applicant described himself as “politically, not an active person”, but a supporter of the BNP (CB 64 at [2]).
The first respondent says that the elevation of the applicant’s interest in the BNP to “love”, together with the additional detail of his purported conduct or involvement in political activities led the Authority to conclude that the applicant did not, and would not in the future, support the BNP. The first respondent says the Authority was concerned that despite having claimed to love the BNP, the applicant chose to not vote in critical elections. Further, the support letter was inconsistent with the applicant’s previous evidence that he was not an “active supporter” and that while the applicant had knowledge of the BNP, that information was available in the public domain. The first respondent submitted that each of those concerns provided a valid basis upon which to reject the applicant’s claims.
In responding to the above alleged inconsistencies, Counsel for the applicant said that:
(a)the distinction between “member” and “supporter” was likely immaterial to the applicant (who relied upon a Bengali interpreter), and the description given by the secretary general in the support letter was beyond the applicant’s control;
(b)the applicant’s failure to vote in national elections was consistent with the applicant’s own description of his “low level” support for the party; and
(c)it was unsurprising that the applicant’s knowledge about the structures and process of the BNP and the issues it faced under the AL were accessible in the public, given that inherently public nature of political parties and that the applicant had been absent from Bangladesh since 2013.
At hearing, Counsel for the applicant submitted that while the above inconsistencies might reasonably have caused the Authority to question the applicant’s degree of support for the BNP, and consequentially, whether that support reached a threshold which might impact, bolster or diminish his protection claims, in the absence of evidence to contradict his claims the Authority could not reasonably or rationally have been satisfied that the applicant was not a BNP supporter at all.
The applicant contends that the only available finding to the Authority was that the applicant was a BNP supporter of some varying commitment. Having regard to the documentary evidence documents and the Authority’s account of what the applicant stated in the 2022 interview, the applicant says that he gave a consistent narrative of a person who was somewhat unconcerned with politics but had a clearly and publicly expressed political preference.
The applicant says that the Authority’s error is material because the conclusions regarding the applicant’s lack of genuine support for the BNP are used elsewhere in the decision to sustain other adverse findings about the applicant’s protection claim.
Consideration
It is well established that a decision may be affected by jurisdictional error if it contains a finding that was unreasonable or irrational including because it lacked an intelligible justification: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Jurisdictional error will be established where a decision is irrational, illogical and not based on findings or inferences of fact supported by logical grounds and can be demonstrated by (emphasis omitted) “findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational”: see BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 at [34] per Perram, Perry and O’Callaghan JJ citing SZMDS (supra) at [132] per Crennan and Bell JJ. A decision maker is also not required to possess rebutting evidence in order to reject factual assertions made by the applicant: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J and SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 at [21] to [25] per Flick J. As the applicant’s Counsel conceded in oral submissions, the test to be applied is stringent and it is not enough to demonstrate that a decision was reached on a point on which reasonable minds might differ.
The Authority’s assessment of the applicant’s claim also needed to be reasonably open to it on the materials, while not setting an arbitrary level of knowledge, commitment or practice which he was required to meet in order to establish his claim: see WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28] to [30] per Mansfield, Jacobson and Siopis JJ (which while dealing with claims pertaining to religion, is relevantly applicable to claimed political beliefs and activity). However, it does not follow that the questioning of a person about their beliefs or practice necessarily means that a decision maker is become an arbiter of the doctrine: see WALT (supra) at [29] per Mansfield, Jacobson and Siopis JJ.
For the reasons which follow, I am not satisfied that the applicant’s ground is made out.
The applicant’s Counsel sought in submissions to carefully construe the applicant’s claims in a way which demonstrated consistency. It was submitted that, in actuality, the applicant had been consistent in his claims since the 2016 statement onwards of advancing himself as being a “not an active person” politically. This was said to correspond with his 2022 statements to the Authority at interview in which he said he gave money at some gatherings and when people were collecting donations at the bazaar where he worked, that his family would sometimes go to the offices of the BNP, and he would gossip with party officials in public and at various party gatherings and meetings. The applicant contends that there is no genuine tension or inconsistency between the matters which the Authority pointed to as being a matter of moment in reaching its conclusion about the applicant’s support of the BNP (or lack thereof).
I reject the contention that the applicant’s claimed support of, and activity involving, the BNP did not escalate over time. By his 2016 statement the applicant’s sole substantive mention of the BNP was the following (CB 67 at [15])[1]:
Awami people knew that I was a supporter of the BNP, and they were targeting me because of that too. They were insulting me and causing trouble for our business.
[1] See also CB 64 at [2]
When the applicant came to be interviewed by the reconstituted Authority in 2022, his claims were significantly more detailed in terms of how his involvement and views about the BNP manifested.
I accept the submission for the first respondent that the statement at interview that the reason he would support the BNP on return to Bangladesh is because he “loved” the BNP, was an expression of a greater level of fervour than had been claimed previously. A plain and contextual reading of the Authority’s reasons does reveal an escalation of the applicants BNP claims over time.
It can be accepted that a person may claim to “love” something and yet not actively pursue it. However, in the present case, the Authority’s decision reveals its reasoning on the issue of the applicant’s claimed BNP beliefs and/or involvement and that reasoning was logical, justifiable and rationally based on the material before it.
To the extent that it was contended for the applicant that he did not have any control about the description given by the secretary general in the support letter, assuming for the purposes of that argument that the letter was genuine, so much can be accepted. However, the applicant did submit that letter in support of his claims. As such, and unlike oral evidence given by a witness from whom the applicant might ask evidence be taken, the applicant was aware of the contents of the support letter and content to advance it in the terms in which it was written: Cf SZEWL v Minister for Immigration and Citizenship (2009) 174 FCR 498 at [44] to [45] per Rares J.
That the Authority decided differently than had the delegate on this point does not affect the conclusion at [42] above. It must be borne in mind that by the time the second Authority came to consider the issue, it had before it further information, including the benefit of being able to examine the arc of the applicant’s developing claims from the time of the delegate’s decision onwards, including at interview with the Authority. It is perhaps therefore unsurprising, but certainly not indicative of error, that the Authority concluded as it did.
The applicant has failed to establish the requisite level of unreasonable or irrational reasoning in the instant case. While the applicant may be dissatisfied with the Authority’s conclusions, they were open to it and, at most, were ones upon which reasonable minds might differ based on the material and evidence available.
CONCLUSION
Accordingly, I accept the submissions of the first respondent that the Authority’s decision was open to it for the reasons that it gave. The finding which rejected that the applicant had supported to the BNP, was perceived as being a BNP supporter, had a genuine interest in the BNP or that he would support the BNP on return to Bangladesh, did not lack an intelligible justification. The decision of the Authority was not unreasonable or irrational in that sense, or any other.
Having not succeeded in establishing jurisdictional error, the decision is a privative clause decision, and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 12 December 2023
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