ESU17 v Immigration Assessment Authority and Anor

[2018] FCCA 2278

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESU17 v IMMIGRATION ASSESSMENT AUTHORITY & ANOR [2018] FCCA 2278

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

Legislation:

Migration Act 1958 (Cth)

Applicant: ESU17

First Respondent: IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: BRG 1045 of 2017

Judgment of: Judge Vasta

Hearing date: 6 August 2018

Date of Last Submission: 6 August 2018

Delivered at: Brisbane

Delivered on: 6 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Lawrence

Solicitors for the Applicant: Australian Business Underwriter

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. The Application filed on 23 October 2017 as amended on 30 July 2018 be dismissed.

2. The Applicant pay the Second Respondent’s costs of and incidental to the application fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1045 of 2017

ESU17

Applicant

And

IMMIGRATION ASSESSMENT AUTHORITY

First Respondent

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed in this Court on 23 October 2017, the Applicant, ESU17, has asked this Court to review a decision of the Immigration Assessment Authority (“the IAA”) made on 3 October 2017, which affirmed a decision by the delegate of the Minister not to grant ESU17 a safe haven enterprise visa. 

2. The application, having been filed on 23 October 2017, resulted in a first court date before Registrar Belcher on 22 November 2017. The Registrar ordered that the Minister file a Court book by 19 December, and ordered that the Applicant file any amended application by 4 pm on 30 March 2018. 

3. The Registrar ordered that 28 days prior to the hearing, the Applicant file and serve written submissions and also a list of authorities in support of the application.  That date was 9 July 2018.  This meant that the Minister had to file their written submissions by 23 July 2018, and the matter was adjourned to today. 

4. Last week, seven days before the hearing, the Applicant filed an amended originating application, which was four months out of time from the order that the Registrar made, and also filed submissions. 

5. The initial question I had to decide was whether I should accept this amended originating application and the submissions thereon, considering that the orders of Registrar Belcher had been dealt with, in a somewhat cavalier fashion, by the Applicant.  Given that this is a matter where the date had been set for some time and that the Applicant was ready to go, I did not consider that the Second Respondent was prejudiced to an extent that would need me to either reject the now filed amended application, or adjourn the matter, and so I embarked upon the hearing. 

6. The facts of the matter can be summarised in short compass.  The Applicant is a citizen of Bangladesh.  He is an ethnic Bengali and a Sunni Muslim.  He claimed that his uncle was a member of the Bangladesh Nationalist Party (“the BNP”) and a Member of Parliament in Bangladesh between 2001 and 2005.  The Applicant claims that he, the Applicant, was also a supporter of the BNP. 

7. He said that he was a shopkeeper at the time that the Awami League, (“the AL”), came into power, and, from early 2009, the AL started threatening them, verbally abusing him because his uncle was a leader in the BNP.  He claimed that, in 2011, the AL beat his brother for protesting against them, and the brother was admitted to hospital for a month.  His brother is now residing in Malaysia. 

8. He said that in February 2012, the AL demanded 1 million Bangladeshi taka from him.  He refused, and they threatened to kill him.  On 20 February 2012, the AL attacked him and tortured him.  He was admitted to hospital from 20 to 28 February due to injuries. 

9. In July 2012, the AL ransacked his shop, set it on fire, and this was around the same time that the AL had lost a case against the BNP, and the AL was behaving rather badly. 

10. He said the police, working under the AL, came to arrest him on 17 July 2012.  He was hiding at his uncle's house as he knew that people would come to arrest him.  He said the AL then came after them to terrorise them in August 2012, but he was hiding in India at the time for a month.  He then tried to seek safety in Comilla for two weeks, but there were a lot of police in that area.  He went to Habibganj for a month.  He could not stay there because the AL was keeping track of him. 

11. He then went to the capital, Dhaka, where he stayed for about two months and there were ongoing protests there, which triggered the police to look for outsiders.  He did not feel safe, and he decided to leave Bangladesh.  He said in November 2012 he sold his shop and was unemployed until May 2013, when he left Bangladesh. 

12. The IAA assessed all of the claims that the Applicant made. 

13. It noted that it was not until the delegate put to the Applicant that they had Facebook photos that linked the Applicant to Malaysia that the Applicant first started talking to the Australian authorities about the fact that he had actually been in Malaysia.  This had not been previously disclosed by the Applicant. 

14. In the end, the IAA came to a conclusion generally which was that notwithstanding that the Applicant had been fairly consistent in his claims, he was not accepted as a credible witness. 

15. For reasons I will go through in a little bit of time, the IAA found that they did not accept any of his claims, and came to a conclusion that the Applicant had left for Malaysia in 2009 and remained there, and left Malaysia in 2013 and came here to Australia, and fabricated claims that he was escaping Bangladesh. 

16. The IAA also, even though this was not part of the claim, looked at the question of the safety of the Applicant if he were to return to Bangladesh as a failed asylum seeker.

17. The IAA found that they were not satisfied that there was a real chance he would suffer serious harm on his return to Bangladesh because of his illegal departure, which meant that he did not meet the requirements of the definition of refugee.

18. The IAA then made a finding they were not satisfied that he would suffer significant harm upon his return, so, therefore, he did not meet the criteria pursuant to s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

19. The grounds of this application are as follows:

    The Second Respondent erred, amounting to jurisdictional error, by engaging in irrational, illogical and procedurally unfair reasoning.

    Particulars:

    The Applicant claimed to have been the victim of extortion from the Awami League, on account of his political opinion.

    In issue before the delegate was when the Applicant had resided in Malaysia and whether he had in fact been resident in Bangladesh when he claimed he had been subjected to extortion demands and attacked and hospitalized (both in February 2012)

    The Second Respondent found that the Applicant's evidence was that he had stayed in Malaysia, at [CB 134 para 28] "at least up until early 2012".

    This followed an earlier stating of his evidence as having been (CB 133 para 24), "He then stated he started working in Malaysia at the end of 2009 for a while; however, he returned to Bangladesh in 2011 after his visa was cancelled. The applicant then said he returned to Bangladesh early 2012 ".

20. The Applicant claimed to have been the victim of extortion from the AL on account of his political opinion.  In issue before the delegate was when the Applicant had resided in Malaysia, and whether he had, in fact, been resident in Bangladesh when he claimed he had been subjected to extortion, demands, and attack, and hospitalised in February 2012. 

21. The maligned part of the reasons are this.  At paragraph 28, the first two sentences read this:

    28. In analysis of the above information, I find the applicant not to be credible.  I am of the view the applicant has fabricated his claims with regard to him being a BNP member or supporter, of being harassed by the AL since 2009, of being attacked and hospitalised in February 2012 and to having owned a shop which was burnt down by the AL in July 2012. Whilst I acknowledge the applicant has been consistent in his claim that the AL demanded money (arrival interview, PV application, and PV interview), given the applicant admitted to working in Malaysia from 2009 and at least up until early 2012, I am not satisfied he has been subject to any demands for money from the AL. 

22. That was the maligned sentence.  The IAA went on in the paragraph to say: 

    The applicant's whole family have a history of seeking work in other countries. 

23. And there are examples given.  The IAA then said: 

    I am of the view the applicant left Bangladesh and travelled to Malaysia for work purposes in 2009 and remained there until mid-2013 before seeking asylum. 

24. And the IAA then went on to talk about country information regarding people leaving Bangladesh for work purposes.  At paragraph 29, the IAA said this:  

    29. Given my credibility concerns, and his negative responses at his arrival interview in regards to his family members’ involvement in politics and participation in protests against the government, I am also not persuaded that his brothers or mother have held positions in the BNP. Notably, I do not accept that his brother R was a student wing member in the student area of the BNP, or that he was attacked in June 2012 on his return to Bangladesh by AL members.  I do not accept his brother, A, was a general secretary of the student wing, or that he held any leadership position with the BNP at union level, and that he was attacked while protesting by AL members in 2011. Likewise, I do not accept that his mother was a member of the BNP union in his area, or that his father was recently attacked by the AL because of the family's association with the BNP. Lastly, given my doubts as to the applicant's reliability as a witness, I do not accept he is related to MR, who was a Member of Parliament, in Bangladesh.  Given the applicant is friends with an AL leader in his local area, I am not persuaded that the applicant or his family supports the BNP on any level. 

25. What is said by the Applicant is that all of the claims were dealt with, in effect, seriatim by the IAA in those two paragraphs.  If one looks at the claims that the Applicant was a BNP member or supporter, or he was harassed or he was attacked and hospitalised in February 2012, or that he had a shop that was burned down, the IAA has said, “I do not find him to be credible, and I am of the view that he has fabricated his claims.”

26. With regard to the claims about the family's association with the BNP, the IAA has gone through those and said, given the credibility concerns and the negative responses at the arrival interview, “I am not satisfied that these things are true.”  But when it came to this aspect of the claim, that is, that he was subject to demands of money for the AL, the IAA said, and again I will reiterate:   

    Whilst I acknowledge the applicant has been consistent in his claim that the AL demanded money, given the applicant admitted to working in Malaysia from 2009 and, at least, up until 2012, I am not satisfied that he has been subject to any demands for money from the AL.

27. The Applicant contends that the way in which the IAA has gone through all of the claims indicates that the sole reason that this aspect of the claim was rejected by the IAA was that the Applicant admitted working in Malaysia from 2009 and, at least, up until early 2012.  The Applicant points to the finding of the delegate at pages 111 and 112 of the Court book.  At page 111 and 112 is the delegate's decision.  The last paragraph of page 111, the delegate says: 

    In regards to whether he came to Australia from Malaysia, the applicant maintained that he went back to Bangladesh from Malaysia and came to Australia from Bangladesh.  I however find the applicant’s narrative in regards to the claimed returned to Bangladesh from Malaysia unconvincing and implausible.  The applicant stated he had to return to Bangladesh because his visa in Malaysia had expired. 

28. The first paragraph on page 112: 

    Nonetheless he was inconsistent with when he returned to Bangladesh, first stating 2011, and then changing to the beginning of 2012 and finally the end of 2011.  I note the photo uploaded by the applicant on 22 July 2013 indicates the applicant was still working in Malaysia in February 2013. Asked who took this photo in February 2013 if he had returned to Bangladesh in 2011/2012, the applicant responded that all the photos were the same and repeated.  I find this response inadequate and unpersuasive. 

29. The Applicant contends that the delegate concluded the final position of the Applicant to be that he returned to Bangladesh at the end of 2011. 

30. The Applicant has today tendered a portion of the interview with the delegate, and has prepared a transcript, which he has labelled an aide-memoire, and I have allowed that document to be part of the matters for the hearing and marked as Exhibit 1.  It is clear from that, that the final position of the Applicant, after much to-ing and fro-ing, was encapsulated in the final two questions asked by the delegate: 

    So you went to Malaysia in 2009, and you stayed in Malaysia for a number of years.  When did you go back to Bangladesh?---End of 2011 I went back to Bangladesh. 

    You still maintain end of 2011.  Then who took this photo in February 2013?---These are all previous picture that are repeated.

31. That transcript is consistent with the summary that the delegate has put down on pages 111 and 112 of the Court book.  The argument is, then, that if the final position is that the Applicant was back at the end of 2011, that there has been a misstatement of the evidence by the IAA, because the IAA has said this in paragraph 28:

    …given the applicant admitted to working in Malaysia from 2009 and, at least, up until early 2012, I am not satisfied…

32. The Applicant surmises that the reason that the IAA has rejected that claim of the extortion is because the extortion occurred in February 2012, and that in giving a summary that the Applicant was away from 2009 until, at least, early 2012, has rejected the timing of the extortion attempt because it also was in early 2012. 

33. To my mind, that is taking a leap too far.  It bears repeating that the Applicant’s claim was that he was the subject of extortion in February 2012 and on 20 February 2012, he was attacked and tortured, so that the claim is that, some time in the 19 days beforehand, he was the subject of the extortion.  The IAA said, in the sentence before the one that is maligned, that the IAA has found that the Applicant fabricated his claims of being harassed since 2009, and of being attacked and hospitalised in February 2012. 

34. The Applicant contends that the only rational way in which the sentence, the maligned sentence, can be read is that, whilst the IAA has found that he was not attacked and hospitalised in February 2012 because of the IAA finding him not to be credible, the IAA was still looking at the claim as being credible that he had been extorted, but rejected that simply because they had misstated the evidence to themselves that he had been working in Malaysia up until early 2012, and not the end of 2011. 

35. In looking at what the IAA’s decision is, one does have to look at the whole of the findings and must read the decision as a whole.  I am not satisfied that the gloss that the Applicant seeks to place on this is the correct gloss; that it was only because of the admission at the 11^th hour, as it were, because of the Facebook photos, that the Applicant admitted working in Malaysia from 2009, at least up until 2012, that such was the only reason that the IAA said that they were not satisfied. 

36. The IAA was not satisfied of all of his claims for a number of reasons, notwithstanding that they went through all of them seriatim.  It really came down to a finding that he had fabricated his claims as to being a BNP supporter and being harassed by the AL since 2009, and that in 2009 he actually left the country and went to Malaysia and left for Australia from Malaysia in 2013. 

37. The fact that the IAA had noted the admission admitting to working in Malaysia from 2009, at least up until early 2012, was a statement that the IAA was using as an extra reason to reject the claim.  That is, that this admission to working in Malaysia only came about because of the delegate finding the Facebook posts and putting those to the Applicant. 

38. Whilst the Applicant submits that the IAA could make a decision and could come to the view that they reject all of his claims because of credibility aspects, but still actually consider the claim of being extorted, I am not of the view that this is an open conclusion on the findings of the IAA, nor was it the conclusion that the IAA had made. 

39. Because of this, I am of the view that there has been no jurisdictional error illustrated to me.  I therefore dismiss the application with costs in the sum of $6000.   

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  16 October 2018