Elk18 v Minister for Immigration

[2019] FCCA 1475

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELK18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1475

Catchwords:
MIGRATION – Application for safe haven enterprise visa – inconsistencies in claims made by applicant – adverse credibility findings – claim for review dismissed.

Legislation:

Migration Act 1958 (Cth) ss.5H, 5J, 36, 46A, 473CB, 476

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: ELK18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 886 of 2018

Judgment of: Judge Egan

Hearing date: 24 May 2019

Date of Last Submission: 24 May 2019

Delivered at: Brisbane

Delivered on: 24 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr Mathavan of Legal Guru

Solicitors for the First Respondent: Mr Hillyard of Sparke Helmore

IT IS ORDERED THAT:

1. The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2. The application for review filed on 28 August 2018 be dismissed.

3. The applicant pay the First Respondent's costs of and incidental to the application fixed in the amount of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 886 of 2018

ELK18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh. He arrived in Australia as an unauthorised maritime arrival on 19 August 2013. On 20 September 2016, the Department notified the applicant that the Minister had lifted the s. 46A bar and then invited the applicant to apply for a temporary protection (sub-class 785) visa or a Safe Haven Enterprise Visa (SHEV). The applicant, as a consequence, applied for the SHEV. On 22 May 2018, the applicant attended an interview with a delegate of the Minister.

2. On 1 June 2018, the delegate refused to grant the SHEV.  On 12 June 2018, the matter was referred to the Immigration Assessment Authority (‘the Authority’).  On 26 July 2018, the Authority affirmed the delegate’s decision to refuse to grant the applicant the SHEV. 

3. On 28 August 2018, the applicant made application for review of the decision of the IAA pursuant to the provisions of s. 476 of the Migration Act 1958 (Cth) (‘the Act’).

4. The applicant’s claims for protection were set out at [5] of the reasons of the Authority as follows:

   ·He is a citizen of Bangladesh from the Jessore district, and he is a Muslim.

   ·His problems are political, and they started with his uncle and his father fighting over land. The land belonged to his grandfather and he died about 15 years ago.

   ·In 2008, his father died of cancer, and his share of the land belonged to him and his brothers.

   ·His uncle and cousins were supporters of the Awami League, and his cousin had a lot of power in their area. In 2009, the Awami League came into power, and this gave more power to his cousin.

   ·He does not support the Awami League, he supports the Bangladesh Nationalist Party (BNP).

   ·His cousin used Awami League supporters to raid them and threaten to kill them. He fled from the house and went to Chittagong for a couple of years and then returned.

   ·His cousin thought he had returned to take over the land. His cousin sent people to warn him to leave or be killed.

   ·He went back to Chittagong. His cousin sent someone to his workplace. He was followed everywhere. So he left Bangladesh illegally in December 2012, when he travelled by boat to Thailand, then Malaysia, then on to Indonesia and by boat to Australia.

   ·All but one of his brothers have also left Bangladesh because of the cousin.

   ·If returned to Bangladesh he fears that spies and members of the Awami League will soon discover his presence and report back to his cousin who will then have him killed.

   ·The authorities will not protect him as they do not care about the average person. As he is not a member of the Awami League they will say he deserves whatever will happen to him. He cannot relocate because his cousin will seek him out to ensure he does not take his land.

   ·The department released his personal information on its website in February 2014, and this places him at a greater risk if he is returned to Bangladesh. His cousin will be aware that he went to Australia and that he claimed protection. If returned his cousin will assume he has returned to take the land.

5. At [3] of the Authority’s reasons, it was recorded that the Authority had had regard to the material provided to it by the secretary pursuant to the provisions of s. 473CB of the Act.

6. The grounds for review, as set out on pages 2 and 3 of the originating application, are as follows:

   1. The First and Second Respondent failed to provide natural justice to the Applicant which is an error of law;

   2. The First Respondent failed to afford Procedural Fairness to the Applicant for failure to change the interpreter after the Applicant brought to the attention of the First Respondent that the Interpreter may not have interpreted accurately.

   3. The First Respondent failed to afford Procedural Fairness to the Applicant for drawing negative reflection on the Applicant when the Applicant voiced his concerns pertaining to the quality of the interpreter which is an error of law.

   4. The Second Respondent failed to afford Procedural Fairness as the Applicant was not provided with an opportunity to be heard independently.

   5. The First and Second Respondent failed to take the Data Breach by the First Respondent into serious consideration is an error of law.

   6. The Second Respondent did not take relevant considerations into account which is an error of law.

7. At [6] of the Authority’s reasons, concerns were noted concerning the authenticity and reliability of identity documentation provided by the applicant, but otherwise it was accepted by the Authority that the applicant was from Bangladesh as claimed. 

8. The Authority, at [7] of its reasons, stated that it did not accept that the applicant’s problems were political.  The Authority was satisfied that the extent of the applicant’s support for the BNP was, as he had said, that he knew of the party and that the BNP did whatever it said it would do, whereas the Awami League did not.

9. The Authority noted that whilst the applicant had initially claimed to have been a member of the BNP support group and to have had a support role with it, the applicant explained, upon further questioning, that his level of support was indirect, and merely was a bond based on an association, like friendship.  The Authority recorded that at the applicant’s second entry interview, conducted in February 2015 (some 18 months after arrival in Australia), the applicant had stated that he had had no involvement with either the Awami League, BNP, or Jamaat-Islami.

10. On that basis, the Authority held that it was not satisfied that the applicant was a member or an active supporter of BNP when he was in Bangladesh. 

11. At [8] of its reasons, the Authority recorded that during the second entry interview, the applicant had said that his reason for leaving Bangladesh was that he had been experiencing political problems and that he wanted to be in Australia to be safe.  When asked if anything in particular had happened to him, the applicant said that nothing in particular had occurred.

12. Reference was made to the applicant having been asked about inconsistencies between answers given by the applicant in his SHEV interview as compared with his entry interview.  The applicant’s response was that he was very depressed and that he could not think straight.  The applicant was noted not to have stated that his life was threatened by his cousin over a land dispute, nor that he was in fear of harm by reason of his support for a political group. 

13. As to the position of the applicant’s cousin in the Awami League, at [9] of its reasons the Authority noted that there were inconsistencies as to the cousin’s alleged level of influence in the Awami League. Those inconsistencies related to answers given by the applicant in his SHEV interview about there being influence, as opposed to answers given in the applicant’s second entry interview when he said that he and his family did not have any communication with political parties.

14. It was also noted by the Authority that the applicant had not given any detailed evidence to support his claim that his uncles and cousins were supporters of the Awami League, or that the cousin who allegedly had threatened him had power and influence because of his support for the Awami League.  The Authority was not satisfied that the applicant’s cousin was a powerful and influential Awami League supporter.

15. At [11]-[13] of its reasons, the Authority dealt with claims by the applicant that he had been threatened because of a land dispute. The Authority did not accept that there was any involvement on the part of the applicant in a family dispute over family land, or that the applicant's cousin had threatened to kill the applicant and his family as a result of such dispute.  It was said that the applicant's evidence during the SHEV interview did not convincingly support the applicant's written claims about the alleged dispute and the alleged threats.  That issue was further examined in particular detail by the Authority at [14]-[21] inclusive of the Authority reasons. 

16. The Authority there set out the applicant's claims, noting that the applicant did not give any information about threats made to his brothers to support his claim.  It found that it was inconsistent that there would be no threats against the applicant's brothers, but that the applicant was solely targeted by his cousin in respect of any alleged dispute, as found in [20] of the Authority reasons. 

17. At [21] of the Authority reasons, it was noted that no family members had been harmed, despite the fact that they had all remained living in the ancestral village up until 2012. Nor was there any evidence that the applicant had been harmed, or that there was any attempt to kill the applicant, between 2007 and 2012 when the applicant left Bangladesh. 

18. At [22] of its reasons, the Authority did not accept that if the applicant returned to Bangladesh he would be at risk from members of the Awami League because of his cousin or otherwise.

19. As to the question of the release of personal data relating to the applicant, at [23] of its reasons the Authority found that the applicant did not provide any information to support his claim that the applicant's cousin would be aware, because of such data breach by the Department, that the applicant had gone to Australia and claimed protection.  In those circumstances, and in the light of the finding that the Authority was not satisfied that the applicant's cousin had threatened to kill the applicant in connection with a land dispute or otherwise, the Authority found that it was not satisfied that the cousin had been made aware of the applicant's having made a claim for protection in Australia as a result of the Department's data breach.

20. At [24] and [25] of its reasons, the Authority set out the relevant refugee assessment and well-founded fear of persecution criteria, as provided for in sections 5H(1) and 5J of the Act.

21. At [26] of its reasons, the Authority found that it was not satisfied that the applicant was a member or active supporter of the BNP in Bangladesh, nor that the applicant's cousin was a powerful and influential supporter of the Awami League.  It also did not accept that if the applicant was returned to Bangladesh that spies of the Awami League would discover the applicant's presence and report his presence back to his cousin for the purpose of having the applicant killed.

22. At [28] of its reasons, the Authority noted that country information indicated that those people most at risk of politically motivated violence in Bangladesh were political party members, and not members of the general public. Such finding was made in the light of there being no evidence that the applicant had been politically active whilst in Bangladesh, or after he had left Bangladesh in 2012. 

23. At [29] of its reasons, the Authority found that it was not satisfied that the applicant's life was threatened due to a dispute with his cousin over family land, or at all, nor that there was a real chance that the applicant would be targeted for any harm in Bangladesh for either family reasons or for political reasons.

24. At [31] of its reasons, the Authority referred to country information (the 2018 DFAT country report) which indicated that returnees who departed Bangladesh without using a passport would be unlikely to be mistreated on return, or charged with an offence under any relevant Act. It was found that the applicant would not face a real chance of any harm as a returning failed asylum seeker who departed the country without using a passport. Accordingly, the Authority found that the applicant did not have a well-founded fear of persecution and that he did not meet either the refugee criteria requirements of section 5H(1) or the section 36(2)(a) criteria.

25. As to the complementary protection criteria, the Authority found that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that the applicant would suffer significant harm. In those circumstances, the Authority found that the applicant would not suffer a real risk of significant harm if returned to Bangladesh. It also found that the applicant did not meet the relevant section 36(2)(aa) criteria.

26. The Authority closely examined each of the claims made by the applicant and made factual findings based upon those claims.  This Court is not entitled to undertake a merits review in respect of such factual findings.

27. The Authority did not fail to make an obvious inquiry about any critical fact.  [1]

    [1]Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

28. It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Authority.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

29. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

30. No jurisdictional error has been demonstrated on the part of the Authority.

31. The application for review is without merit and is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 3 June 2019