ELF19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 152

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELF19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 152

File number(s):

SYG 2922 of 2019

Judgment of:

JUDGE OBRADOVIC

Date of judgment:

3 February 2021

Catchwords:

MIGRATION – application for judicial review – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss 5H 473CB, 473DC, 473DD

Cases cited:

ABT17 and the Minister for Immigration and Border
Protection [2020] HCA 34
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at 47
AUS17 and Minister for Immigration and Border Protection [2020] HCA 37
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22
Minister for Immigration and Citizenship v Li [2013] HCA 18

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Number of paragraphs:

63

Date of last submission/s:

1 December 2020

Date of hearing:

20 October 2020

Place:

Parramatta

Appearing for the Applicant

In person

Counsel for the First Respondent

Mr Johnson

Solicitors for the First Respondent 

HWL Ebsworth Lawyers

ORDERS

SYG 2922 of 2019

BETWEEN:

ELF19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	3 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The Application filed on 11 November 2019 is dismissed.

REASONS FOR JUDGMENT

JUDGE OBRADOVIC

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“Authority”), made on 10 October 2019, which affirmed the decision of the delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”).

   Background

2. The applicant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 25 March 2012.

3. The applicant was interviewed by an officer of the Department of Immigration and Border Protection (now Department of Home Affairs) on 20 January 2013 (“entry interview”).

4. On 11 August 2016, the applicant applied for a SHEV on the basis that he feared harm from the Awami League by reason of his political affiliation with the Jamaati-e-Islami (“JEI”), an Islamist political party.

5. The applicant raised the following claims in support of his application:

   a)That he was employed in 2007 as a tailor. The name of the owner of the business was Jali.

   b)That he was a victim of political harassment from local Awami League supporters as a result of his political support for the JEI, which involved death threats and several failed attempts to end his life.

   c)That if he was to return back to Bangladesh he would be harmed, mistreated and/or killed by members of the Awami League government.

   d)That he attempted to report the harassment to the local police, however was advised they would not accept any complaints made against the Awami League government.

   e)That it is standard practice or rather “tradition” for the Police and Courts to support the current government and therefore he would not receive effective protection from those who intended to cause him harm.

   f)That he is unable to relocate to another area in Bangladesh because the Awami League have a strong network across the country and would be able to locate him. He further says that he had previously attempted to hide within the country but was found by members of the Awami League government.

6. The applicant participated in an interview with a delegate of the Minister on 29 August 2019 (“SHEV interview”). The applicant provided further documents and oral information in support of his protection claims during the interview such that he claimed that his father was an Imam in the local mosque, a member of the JEI and the leader of the JEI branch in that local area. The applicant also claimed the following at the SHEV interview:

   a)That he was the “first hand” of his father and as such also joined the JEI in 2006.

   b)That he also joined Islami Chhatra Shibir (ICR), which was the student wing of the JEI.

   c)That he organised and attended political rallies on or about 15 occasions.

   d)That his father was the JEI candidate in an election in 2001.

   e)That he was assaulted by members of the Awami League on several occasions between 2006 and 2007.

7. On 2 September 2019, the applicant provided a medical certificate by his treating general practitioner which stated that he suffered from depression and anxiety and was prescribed Lexapro.

8. On 12 September 2019, the applicant’s SHEV application was refused by the delegate. In determining the application, the delegate found that the applicant’s description of his political involvement with the JEI was largely embellished, noting the inconsistent and confused accounts provided by the applicant in his entry interview and his SHEV interview. The delegate did not accept that such claims advanced by the applicant at the SHEV interview, namely that he held any leadership role in the ICR and/or was an active member of the JEI. The delegate was unconvinced that the applicant was of any adverse interest to the JEI or Bangladeshi authorities or that he faced any real chance of harm due to his political opinion or for any other reason. 

9. The delegate’s decision was referred to the Immigration Assessment Authority (“Authority”) for fast track review under Part 7AA of the Migration Act 1958 (Cth) (“the Act”).

   Authority’s Decision

10. On 10 October 2019, the Authority determined the applicant’s case. It affirmed the decision of the delegate not to grant a protection visa.

11. The Authority had regard to the review material provided by the Secretary pursuant to s.473CB of the Act and the applicant’s submission submitted on 6 October 2019, being a statement which largely addressed matters before the delegate. The applicant’s submissions also contained the following information:

    a)That his father assisted him to get a JEI membership with his influence; and

    b)That he was sexually assaulted by a group of members of the Awami League in 2007.

12. The Authority was not satisfied that exceptional circumstances existed to take into account the ‘new information’ – that it was his father who helped him get JEI membership. However, the Authority did consider his claim that he was sexually assaulted to the extent that the delegate did already elaborate on that possibility in their reasons.

13. In addition, the applicant also provided two documents; the first document was a birth certificate from the People’s Republic of Bangladesh signed on 1 October 2019 and the second document was a photocopy of some pages of a newspaper, which is not in English except for the title “The Daily Nabochitro”. The Authority did not have regard to these documents for the purposes of s.473DD of the Act.

14. The Authority did not accept that:

    a)He was or would be harmed by members of the Awami League.

    b)He was a member of ICS, the student organisation of the JEI.

    c)He was scared of disclosing his father’s true political affiliation with the JEI at the entry interview, noting he was able to disclose not only his own but also his brother’s political connections.

    d)He was attacked by members of the Awami League between 2006 and 2007 or that he was tortured, physically and sexually assaulted.

    e)He was involved in organising rallies, meetings and/or demonstrations in support of the JEI.

    f)He was a member of any political party but rather an individual who supported the ideology and policies of the JEI.

15. The Authority found that the applicant fabricated his claims that his father was an electorate candidate for the JEI.

16. The Authority found that, with reference to available country information, the Awami League did not gain power until 2008 and as such any politically motivated violence against JEI did not occur until then.

17. The Authority was of the view that this demonstrated the applicant’s lack of knowledge of the actual political situation in Bangladesh at that time.

18. The Authority was ultimately not satisfied that the applicant met the requirements of s.5H(1) or that the applicant was entitled to protections under s.36(2)(aa) of the Act.

    DETERMINATION

    The application before this Court

19. The applicant’s grounds for judicial review are as follows:

    1.The decision was affected by jurisdictional error in that the Immigration Assessment Authority failed to consider merits of my case in completed which resulted in crucial factors regarding my case being not assessed against the relevant legal criteria.

    2.The decision was affected by jurisdictional error in that the Immigration Assessment Authority failed to give adequate weight to my psychological state at the time of my Protection Visa interview and failed to acknowledge that what may have appeared as inconsistencies were in fact a result of my fears and psychological issues related to expressing myself before an authority.

    3.The decision was affected by jurisdictional error in that the Immigration Assessment Authority dismissed evidence such as my membership to a particular political group without a reasonable ground which could be supported by evidence.

    4.[not pressed]

    5.The decision was affected by jurisdictional error in that the Immigration Assessment Authority took into account irrelevant and subjective considerations alienating the decision to arrive at an objective outcome.

    6.The decision was affected by jurisdictional [error] in that the accuracy of the interpretation was not tested.

    7.The decision was affected by jurisdictional error in that it was unreasonable to the objective assessor.

20. The matter was listed for hearing on 20 October 2020. The applicant sought an adjournment on that occasion. The application was refused by the Court. 

21. At the time of the hearing, the applicant had not filed any written submissions in support of the grounds which he alleges, however, he was given the opportunity of making oral submissions to the Court. The applicant took that opportunity of addressing the Court in respect of the matters which he was concerned about.

22. The Court had the benefit of written submissions filed on behalf of the first respondent on 6 October 2020, as well as oral submissions from the first respondent’s Counsel at hearing.

23. At the conclusion of the hearing and in light of the oral submissions from the first respondent’s Counsel in respect of the two High Court cases of AUS17 and Minister for Immigration and Border Protection [2020] HCA 37 and ABT17 and the Minister for Immigration and Border Protection [2020] HCA 34 (delivered on 14 October 2020), the applicant was provided the further opportunity to file and serve submissions addressing the grounds of the application together with any arguments that may arise from the two recent High Court decisions. The first respondent was also provided the opportunity to file and serve submissions in reply.

24. On 18 November 2020, the applicant filed written submissions and without the Court’s leave, an affidavit, annexing a number of documents.

25. The first respondent’s submissions in reply were filed on 1 December 2020.

26. The annexure to the applicant’s affidavit filed 18 November 2020, are objected to by the first respondent. The first annexure is an article which was neither before the Authority or the Department. The second annexure post-dates the Authority’s decision and the third annexure is a letter of support dated 11 November 2020. The Court is not permitted to engage in any merits review. Leave in respect of the affidavit was not sought and particularly given the nature of the documents annexed to the affidavit, the affidavit is rejected in its entirety.

27. The applicant has further, at the time he filed his written submissions on 18 November 2020, provided to the Court a medical certificate dated 17 November 2020, addressed to “To Whom it May Concern.” The certificate is not annexed to any affidavit. It is a letter from STARTTS, confirming that a social worker has been seeing the applicant since October 2019. The applicant was referred to STARTTS “for psychological and emotional difficulties as a result of negative outcomes in relation to his claim for protection.” It is not a document which is relevant to the application for judicial review, although it may be relevant to the exercise of the Minister’s discretion in certain regards.

    Ground 1

28. In Ground 1, the applicant asserted that the Authority failed to consider the merits of his case and thus failed to assess, against relevant legal criteria, the crucial factors regarding his case. No particulars were provided in the application or at hearing. Without such particulars, and having regard to the detail of the Authority’s decision it is difficult to understand what the applicant is actually asserting, except some global complaint against the merits of the decision.

29. Before the Court, the applicant submitted “Maybe, I think, I didn’t make them understand” and conceded that the Authority heard what he had to say, that such matters were considered by the Authority but that he was not believed by the Authority. The applicant submitted that the Authority should have thought about why the applicant would leave his country if he didn’t fear harm, and asked “why would I be here if I didn’t have any problems?”.

30. In his written submissions, filed after the hearing, the applicant asserts that the Authority failed to consider “the real fact of the case”, such that the Authority failed to conduct certain research about the political situation in Bangladesh. The applicant refers to an incident that had occurred in 2006 where Awami League members killed JEI members in the presence of Bengali police. This was the only particular provided by the applicant.

31. It is of note that when before the Court, the applicant conceded that the Authority did consider his claim but that he was not believed.

32. The Authority’s reasons considered the applicant’s claim as advanced and developed over time. The Authority is not required to accept uncritically any and all claims made by the applicant. The mere fact that a person claims a fear does not establish either the genuineness of the asserted fear or that it is a well-founded fear (Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22).

33. In respect of the 2006 incident referred to in the applicant’s written submissions before this Court, this was not a matter which the Authority’s reasons disclose the applicant raised either with the delegate or the Authority. The applicant had the opportunity to put before the Authority new information pursuant to s.473DD, he did not seek to do so except so far as identified at paragraphs [3]-[5] of the Authority’s decision, which referred to a statement from the applicant and two additional documents, being a birth certificate and a newspaper clipping. It was a matter for the Authority itself to determine what country information it otherwise had regard to (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).

34. Ground 1 is not made out.

    Ground 2

35. In Ground 2, the applicant asserts that the Authority failed to give adequate weight to his psychological state at the time of the protection visa interview and failed to acknowledge that what may have appeared as inconsistencies were in fact a result of his fears and psychological issues related to expressing himself before an authority.

36. Before the Court, the applicant conceded that there was no evidence as to the effect of any anxiety and/or depression and/or medication which the applicant had been prescribed at the relevant time. The applicant told the Court that he disagrees with the weight attributed to the medical evidence before the Authority. He said that they looked at it but did not accept it.

37. In submissions filed by the applicant, the applicant asserts that his psychological condition affected his ability to recall exact answers at the interview with the delegate. The applicant is of the view that he ought to have had the right to have the interview adjourned until he was mentally fit.

38. The Authority had before it a medical certificate signed by a general practitioner provided by the applicant on 2 September 2019. The applicant is really saying that the Authority, having before it the medical certificate which showed that as at 30 August 2019, he suffered from depression and anxiety, should have extrapolated from that certificate, that in 2019 the applicant did not have the capacity to recall correctly the answers he gave in 2013.

39. The Authority noted the September 2019 medical certificate and also that the applicant did not indicate that he feared harm due to any mental health condition. The applicant did not at any point during the review process, either before the delegate or the Authority claim that he suffered from any incapacity during the SHEV interview to accurately recount his protection claims. In any event, there is no such evidence and there never was any such evidence. This was not a matter where the Authority unreasonably failed to consider inviting the applicant to an interview pursuant to s.473DC.

40. Furthermore, whilst the Authority’s decision involved findings of credit, the basis of those credit findings was not upon how the applicant delivered his claims at the interview but was by reference to the content of the claims as advanced at different times along the way.

41. Ground 2 is not made out.

    Ground 3

42. In Ground 3, the applicant asserts that the Authority dismissed evidence going to his asserted membership to a particular political group without a reasonable ground, when such assertion could be supported by evidence.

43. Before the Court, the applicant said words to the effect “Whatever I had to say in my favour I said at the interview, I have nothing more to say.”

44. In his written submissions, the applicant asserts matters of fact and is critical of  the Authority for not conducting certain research, namely through the “human right report on extrajudicial killing against JI in Bangladesh”

45. Upon a reading of the reasons as a whole, the Court finds that the Authority provided cogent reasons for rejecting aspects of the applicant’s claim about membership of a particular political group, having regard to the country information and the applicant’s evidence. For example, the Authority had regard to the date when the applicant left school and did not accept that he was a member of the student wing of a particular political party years after he left school. The Authority also did not accept that the applicant’s father was involved in politics. The Authority also expressed concern about the applicant’s knowledge of the political situation in Bangladesh.

46. The Court accepts the first respondent’s submissions that the Authority’s reasons engage with the applicant’s claims and demonstrate a considered rejection of the applicant’s claims.

47. Ground 3 is not made out.

    Ground 4

48. Ground 4 is not pressed.

    Ground 5

49. In Ground 5, the applicant asserts that the Authority took into account irrelevant and subjective considerations, such that the decision was unreasonable. It was at the time of the filing of his written submissions, that the applicant for the first time particularised what relevant material the Authority was said not to have considered, being “online media and UN Human Right Documents”. The applicant makes complaint that the Authority “just gave affirmative motion to the decision” of the delegate. The applicant also asserted in his written submissions, that the Authority should have given the applicant the opportunity to provide oral evidence at interview, but such an opportunity was denied.

1. Unreasonableness will be established where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to such decision (Minister for Immigration and Citizenship v Li [2013] HCA 18).

2. The Authority considered the applicant’s claims as advanced at different junctures of his application, it considered the document the applicant submitted and the country information. The applicant has not explained, in any way whatsoever, what he asserts the Authority considered which was said to be irrelevant or subjective. It did not simply affirm the decision of the delegate. It addressed each of the applicant’s claims for protection and the evidence in support, and came to a conclusion that it would affirm the delegate’s decision.

3. The Authority is neither obliged, nor permitted to conduct its own research. It has to review the decision on the review material, and if applicable and appropriate, new information. The applicant had the opportunity to put before the Authority new information pursuant to s.473DD, and attempted to do so. Such material did not deal with matters he now complains the Authority did not consider.

4. The Authority’s reasons did not involve any illogicality or unreasonableness (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at 47). The findings of the Authority and the outcome of its decision, were open to a reasonable decision maker on the materials that were available to the Authority.

5. Ground 5 is not made out.

   Ground 6

6. In Ground 6, the applicant asserts that the accuracy of the interpretation was not tested.

7. No oral submissions were made in support of this ground, however, in his written submissions the applicant says that as he “was not mentally fully fit to stand for interview according to his psychosocial report before the interview officer/case officer. The applicant was not fully mentally fit to give exact answers of the questions made by the case officer and interpreted those questions by a Bengali interpreter. The questions interpreted by the Bengali interpreter where (sic) not fully understand (sic) and the applicant failed to provide correct answers…”

8. It is clear from the applicant’s written submissions, that this is not a complaint against the accuracy of the interpretation but rather the same complaint as made in ground 2 but put in a different way. This complaint was dealt with earlier in these reasons.

9. If the Court is wrong about this, to the extent that the applicant is asserting errors by the interpreter during the SHEV interview, the applicant does not and has not particularised or articulated in any manner what those asserted errors might be, how those errors impacted on the Authority’s findings, nor does he put before the Court any evidence of such errors.

10. Ground 6 is not made out.

    Ground 7

11. In Ground 7, the applicant asserts that that the Authority’s decision was unreasonable to the objective assessor. No particulars have been provided as to what the unreasonableness is said to relate to.

12. The applicant in his written submissions, says that the Authority failed to make an impartial assessment and that the Court should appoint a new member to re-assess his protection application. At best this appears to be a repetition of ground(s) already addressed, in particular at paragraphs [50]–[53] above.

13. Ground 7 is not made out.

    Conclusion

14. The application for judicial review is therefore not made out.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated:       3 February 2021