Euq17 v Minister for Immigration
[2018] FCCA 696
•28 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EUQ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 696 |
| Catchwords: MIGRATION – Judicial review – application for a Safe Haven Enterprise Visa – Immigration Assessment Authority decision – citizen of Myanmar – whether failure to properly consider all claims – whether opportunity to comment on claims – whether jurisdictional error. |
| Legislation: Constitution (Cth), s.75(v) |
| Cases cited: AFK16 v Minister for Immigration & Border Protection [2016] FCCA 1826 Singh v Minister for Immigration & Anor [2016] FCCA 592 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 |
| Applicant: | EUQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 578 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 9 March 2018 |
| Date of Last Submission: | 9 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 28 March 2018 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Ms SJ Oliver |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS (as made 9 March 2018)
The application be dismissed.
Written reasons for judgment to be published from Chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $7,328 by 9 April 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 578 of 2017
| EUQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 31 October 2017 the applicant seeks review of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The IAA Decision dated 13 October 2017 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Safe Haven Enterprise Visa (“Safe Haven Visa”) to the applicant. The IAA Decision appears in the Court Book (“CB”) at CB 179-206.
A Registrar of the Court made orders on 8 December 2017 (“Registrar’s Orders”) permitting the applicant to file any amended application including complete particulars, any supporting affidavit evidence and a written outline of submissions prior to the hearing on 9 March 2018. Despite this opportunity the applicant filed no further materials with the Court.
When the matter came on for hearing on 9 March 2018 the applicant was not in attendance. Having called the matter three times outside the courtroom the applicant still did not appear. This Court, pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth), may proceed to determine a matter where the applicant has failed to appear: Singh v Minister for Immigration & Anor [2016] FCCA 592 at [1] per Judge Vasta. The Court indicated to the Minister that it had read the Minister’s written submissions and the other materials before it, and subject to the Minister expressing any view to the contrary, the Court expressed the view that the Judicial Review Application ought to be dismissed. The Minister raised no objection to the Court doing so. The following orders were made by the Court:
1. The application be dismissed.
2. Written reasons for judgment be published from Chambers at a later date.
3. The applicant pay the first respondent’s costs in the amount of $7,328 by 9 April 2018.
Following the making of the orders it transpired the applicant was outside of the courtroom, but when the matter was called outside the courtroom three times, the applicant did not respond to the pseudonym by which he is known and was called for the purpose of these proceedings, provided pursuant to s.91X of the Migration Act, and which precludes the calling of his real name: AZAEO v Minister for Immigration & Border Protection [2015] FCA 179 at [2] per Allsop CJ; AZAES v Minister for Immigration & Border Protection [2015] FCA 180 at [1] per Allsop CJ. Such circumstances are unfortunate, but the Court was nevertheless of the view that the grounds of the Judicial Review Application did not establish any grounds of jurisdictional error, and the Court having read the material and being aware of the possibility that jurisdictional error might otherwise arise on the evidence and material before the Court: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [112] per Mortimer J, was satisfied that there was no jurisdictional error in the IAA Decision, and that for the reasons set out hereunder the Judicial Review Application ought to be dismissed.
What follows are the Court’s formal written Reasons for Judgment as referred to in order (2) of the orders set out at [3] above.
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Myanmar, born on 1 January 1987: CB 1, arrived in Australia as an unauthorised maritime arrival on 14 August 2012: CB 13 and 119;
b)on 18 August 2015 the Minister “lifted the bar” pursuant to s.46 of the Migration Act and invited the applicant to apply for a Safe Haven Visa. The applicant submitted an application for a Safe Haven Visa on 10 November 2015 making the following claims:
i)he is a Sunni Muslim, a Rohingya, stateless, and fears returning to Myanmar as he has no rights as a citizen in the country: CB 82;
ii)as a Muslim at school he was not allowed to pray in accordance with Islam, and when he resisted saying Buddhist prayers the teacher would hit him, he was treated badly and has experienced beatings because of his religion: CB 82;
iii)people openly abused him because of his skin colour, and people assume he is Muslim because of his skin colour, and say and do whatever they want to him, and on one occasion when he was with friends some people were saying bad things about them and an argument broke out and he was struck over the head with a chair: CB 82;
iv)one of the people saying things about him and his friends and involved in the argument was the nephew of the local village leaders, and his mother was told to expect that they would have the applicant arrested, so he felt that there would be little chance of him being able to continue to live in the village without having further incidences: CB 83;
v)the applicant attempted to go to Malaysia, however, he was stopped at a checkpoint and arrested for having no identification papers, and he was “locked up” by the police for two and a half months, after which he was released: CB 83;
vi)when he attempted to go to Malaysia again his aunt and her father had to pay the guards to allow him through the checkpoint: CB 83;
vii)when he got to Malaysia he was constantly arrested by the police and had to bribe them to be released: CB 83;
viii)in Myanmar, Rohingya and Muslim people are persecuted by the people and government without question, and he has personally been persecuted because of his skin colour, religion and ethnicity for his entire life: CB 83; and
ix)his father told him there was a conflict between Burmese and Rohingya Muslims in a particular village on 20 March 2013 and a lot of Rohingyas were beaten, killed and their houses were burnt down by Burmese people and the government, so he believes that Rohingyas continue to face persecution and that the situation is only getting worse: CB 84;
c)the applicant was invited to attend an interview with the Delegate on 24 January 2017: CB 173-175, and at that interview he said that he:
i)did not belong to the Rohingyan community in Myanmar, rather he claimed to be a Bengali Sunni Muslim; and
ii)had been issued with a birth certificate, though his mother “lost” it, and he attended a Burmese school using an alias;
d)on 8 February 2017 the Delegate refused to grant the applicant the Safe Haven Visa: CB 179-184;
e)pursuant to s.473CA of the Migration Act the matter was referred to the IAA on 13 February 2017: CB 189; and
f)on 13 October 2017 the IAA affirmed the Delegate’s Decision and refused to grant the applicant a Safe Haven Visa: CB 192-210.
IAA Decision
In the IAA Decision, the IAA:
a)confirmed all of the material before the Delegate was before the IAA pursuant to s.473CB of the Migration Act, and the applicant had not provided any further materials or submissions: CB 193 at [2];
b)set out the relevant provisions of the Migration Act that the applicant must satisfy in order to be granted a Safe Haven Visa: CB 193 at [4]-[5], CB 205 at [75]-[76] and CB 207-210;
c)noted the applicant had given conflicting and contradictory evidence in both his oral and written evidence, and while there were aspects of his claims the IAA accepted other aspects of his claims were undermined by his lack of credibility: CB 195 at [16];
d)gave no adverse weight to an inconsistent rendering of the applicant’s name on the basis that whilst the applicant only believed he had a first name, he had been attributed in some circumstances a last name which was that of his father as is common in some countries to identify a person, and that it was possible that the applicant could not remember what name he had used in email addresses or social media where he may have registered his name differently in other countries: CB 195 at [17]-[18];
e)found the applicant's evidence as to his ethnicity concerning, and his explanations for why he provided a different ethnic background, and then resiled from those claims, to be unsatisfactory, and was satisfied the applicant was not a Rohingya, and that his willingness to provide untrue evidence about his membership of that ethnic group raised serious concerns about his other claims, including his claim to be stateless: CB 196 at [24]-[25];
f)expressed doubt as to the applicant’s claim to be a Muslim who recited his prayers five times a day, noting that:
i)he claimed to be a Sunni Muslim, but could not explain the key differences between Shia and Sunni Islam;
ii)he knew little about the central tenets of Islam;
iii)he did not know what the prayers were and said he was unable to recite them without the Imam's guidance; and
iv)even if he was illiterate as he claimed when asked about these matters, which the IAA doubted considering he admitted to having attended school, that was not a valid explanation for his lack of knowledge: CB 196-197 at [26]-[27];
g)nevertheless, accepted the applicant was a Sunni Muslim because his claim of identifying as a Sunni Muslim had been consistent through the Safe Haven Visa application process, though it noted he was, at best, a low-level adherent of the faith: CB 197 at [27]-[28];
h)referred to country information concerning the deliberate institutional barriers preventing members of some ethnic groups from obtaining full citizenship rights in Myanmar and noted the situation for Rohingya Muslims who reside in Myanmar, and for persons of Indian, Chinese, Anglo-Burmese or Nepali descent, which suggests that those national or ethnic groups have been particularly targeted for harm by the Burmese army with evidence of treatment such as torture, cruel, inhuman and degrading treatment and punishment, extra-judicial killing and summary execution, arbitrary arrest and detention, rape, destruction of homes, forced labour, forced relocation and eviction, confiscation of land and property, and that the applicant had expressly withdrawn the claim he was a Rohingya, and that he did not claim to be from one of the other groups: CB 198-199 at [33]-[36];
i)did not accept the applicant’s evidence concerning his mother’s citizenship status: CB 199 at [37]-[39];
j)questioned why the applicant’s father, who on the basis of the applicant's evidence would be at risk of harm from his religious and ethnic background and lack of citizenship or other status, would elect to return to Myanmar, and found the applicant's evidence that his father returned to Myanmar undermines his claims that his family are stateless and fear harm in Myanmar: CB 200 at [42]-[43];
k)found the applicant is not a Rohingya, but is from another ethnic group that is not prevented from holding citizenship in Myanmar, and noted that the Australian Department of Foreign Affairs and Trade (“DFAT”) assesses that people in Myanmar, other than those who identify as Rohingya, typically face a low level of official and societal discrimination on the basis of their race or ethnicity: CB 200 at [46];
l)accepted some low level discrimination on the basis of ethnicity does occur, and such was likely the case when the applicant attended school in the 1990’s, including that teachers in a Burmese Buddhist school may have used derogatory terms towards him as a child due to his religion and ethnicity that were humiliating and caused him fear and anxiety, and that this may have amounted to serious harm: CB 201 at [51]-[52];
m)that non-Rohingya Muslims do not face significant restrictions on access to citizenship, and therefore enjoy a greater level of formal legal protection from discrimination: CB 202 at [58];
n)dealt with the applicant’s claim of an incident involving the nephew of the local village leader, following which the applicant was sent away to Malaysia by his mother, and noted that the applicant was not truthful in his claims in his written statement regarding his family’s ethnic and religious background, and had been found to lack credibility overall, and that in relation to this incident he had raised it at his arrival interview at which point he had said that it was a fight between a group of Muslim boys and a group of Buddhist boys and that his mother had sent him away to Malaysia because she feared he might be killed or that he might kill someone: CB 201-202 at [54]-[56];
o)reviewed the country information from DFAT concerning societal violence between Muslims and Buddhists in Myanmar and found that whilst there had been serious incidences of such violence they did not occur in every town with a Muslim population nor on a daily basis, and that DFAT had indicated that credible sources said that Muslim and Buddhist communities lived together without violence where they are mutually dependent for trade and other livelihood purposes, and that Muslim communities in major cities also generally lived peacefully, and that Muslims outside of Rakhine State faced a low risk of societal violence on a day-to-day basis: CB 201-202 at [54]-[60];
p)accepted that the country information indicated a level of societal tension and discrimination in relation to Muslims in Myanmar, and accepted that the applicant may have been involved in a confrontation in 2004, but that there may have been components other than a religious one, including immaturity and recklessness, but was not satisfied that that was the catalyst for the applicant leaving the country, noting that DFAT country information indicated that migration to Malaysia and Thailand is common for Burmese and is closely linked to livelihood opportunities: CB 203 at [61]-[62], and went on to find that, given country information about migration patterns, the applicant’s time out of his village area for work in Malaysia and his time in Australia, would be “unremarkable, and that no one in his home area would seek to target him for this reason”: CB 203 at [62];
q)considered that the applicant would return to his home village in Myanmar and seek to find work and accommodation, bring his family with him in due course, and that the difficulties that he might previously have faced which might have been in part connected to religion, ethnicity and skin colour were matters in respect of which he would have no ongoing profile, and which given the evidence on the country information suggests that there is a low risk of societal violence on a day-to-day basis, meant that as a Muslim outside of Rakhine State he would not face significant restrictions on access to citizenship and would enjoy a greater level of formal legal protection from discrimination: CB 204 at [68]-[69];
r)accepted that the applicant would face a moderate level of societal discrimination and low levels of official discrimination on the basis of his religion, but that as a citizen he would possess a greater level of formal legal protection from discrimination, and noted that his family had owned a small business in the past, that his birth was registered, and that he had been able to access schooling and work in transportation prior to leaving for Malaysia, and that his father had returned to live in Myanmar: CB 204 at [70];
s)accepted any discrimination the applicant may face would be a frustration and difficult, but was not satisfied it would:
i)threaten his capacity to find employment;
ii)deny him access to basic services;
iii)threaten his ability to subsist or earn a livelihood in the country; or
iv)involve harassment or other harm that would constitute serious harm,
and found the likelihood that the applicant would be involved in, or a victim of violence or serious harm on the basis of his religion would be remote, and that, therefore, in a cumulative sense, any discrimination he may face on the basis of his religion, ethnic background or skin colour would not be at a level that amounts to serious harm: CB 204 at [71]-[73];
t)was satisfied that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act, and did not meet the relevant criterion in s.36(2)(a) of the Migration Act: CB 204 at [74];
u)did not accept the low to moderate levels of discrimination would amount to the death penalty, or result in an arbitrary deprivation of life, or torture, and having regard to the applicant's circumstances and the prevailing country information did not accept that such discrimination would involve pain or suffering that is cruel or inhuman in nature, or severe pain or suffering, or would be intended to cause extreme humiliation, even in a cumulative sense, leading to the conclusion the applicant was not entitled to protection under the complementary protection provisions of the Migration Act: CB 205 at [77]-[79]; and
v)concluded that there were not substantial grounds for believing that at as necessary and foreseeable consequence of being returned to Myanmar that there would be a real risk that the applicant would suffer significant harm, and that the applicant therefore did not meet the complementary protection criterion in s.36(2)(aa) of the Migration Act: CB 206 at [80].
The IAA affirmed the Delegate’s Decision not to grant the applicant a Safe Haven Visa: CB 206.
Judicial Review Application grounds
The grounds of the Judicial Review Application are as follows:
1. The Assessor failed to properly consider all of my claims.
2. The Assessor didn’t give me a chance to comment on one aspect of my claims.
Consideration
Jurisdictional error required
The IAA Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the IAA will only constitute jurisdictional error if the IAA:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. Jurisdictional error might also arise if there is a denial of such procedural fairness as is required by the terms of the Migration Act (in this case Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB): SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; AFK16 v Minister for Immigration & Border Protection [2016] FCCA 1826 at [12] per Judge Cameron.
Particularisation of grounds required
The Court notes that neither of the grounds are particularised. The grounds remain unparticularised notwithstanding the applicant had an opportunity to amend and particularise the grounds pursuant to the Registrar’s Orders. This alone provides a basis for each of grounds 1 and 2 of the Judicial Review Application to be dismissed. In AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 at [20] per Judge Lucev this Court found that a failure to particularise a ground of review was a sufficient basis for the ground to be dismissed, a finding approved by the Federal Court in AYE16v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J, and in respect of which the same view has been expressed in WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J (from which an application for special leave to the High Court was refused: AQN15 v Minister for Immigration & Border Protection [2016] HCASL 183). The Court will nevertheless consider to the best of its ability grounds 1 and 2 of the Judicial Review Application as they are presently framed.
Ground 1
The applicant was required to satisfy the IAA he met the requirements of s.36(2)(a) and (aa) of the Migration Act, both of which contained individual elements the subject of other criteria, namely ss.5J and 5H of the Migration Act. The IAA identified these as the relevant legislative provisions concerning the applicant’s Safe Haven Visa: CB 193 at [5], CB 205 at [76] and CB 207-210. The IAA will fall into error where it fails to consider an applicant’s claims and any component integers mandatorily relevant under the Migration Act, namely the particular visa criteria an applicant must satisfy in order to obtain the visa they seek.
In Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a) the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a social group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence: Dranichnikov at [23] per Gummow and Callinan JJ;
b) the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice: Dranichnikov at [24]-[25] per Gummow and Callinan JJ; and
c) a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction: Dranichnikov at [24]-[25] and [32] per Gummow and Callinan JJ.
The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”), namely that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
WAEE at [47] per French, Sackville and Hely JJ.
The Court must also consider if the IAA failed to “engage in an active intellectual process directed at that claim or criteria” the applicant claims the IAA failed to consider: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [45]-[46] per Griffiths, White and Bromwich JJ (“Carrascalao”).
The Court, in the absence of particulars, cannot identify what claim, or a component integer of a claim, related to the visa criteria in ss.36(2)(a) or 36(2)(aa) of the Migration Act, it is that the applicant purports to suggest the IAA failed to consider.
Having read the materials before the Court in order to consider and analyse the IAA Decision, the Court notes the following:
a)the substance of the applicant’s claims was that he feared persecution as a result of his ethnicity, his religion, his skin colour and as a “stateless” person in Myanmar, all of which if accepted by the IAA and proven to satisfy the requirements of s.5H and s.5J of the Migration Act as being well founded or causing “significant harm”, would suggest he was eligible for a Safe Haven Visa;
b)the IAA noted that when the applicant changed his ethnicity at the interview with the Delegate to “Bengali”, he effectively conceded that his fear of persecution as a Rohingya was incorrect: CB 196 at [21]-[22];
c)the IAA found the applicant was not a Rohingya: CB 200 at [46], that being a finding for the IAA as the finder of fact, and one which this Court ordinarily cannot, and in this case, ought not in any event dispute: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ;
d)the IAA addressed the applicant’s claim to be a stateless citizen: CB 200 at [43] and [45], finding his own evidence coupled with the serious inconsistencies in his claims regarding his parents’ citizenship meant that he did not lack citizenship, nor was he stateless, thus the IAA no longer needed to consider his claim to fear harm on this basis as the IAA did not accept the claim;
e)while not accepting the applicant was a Rohingya, noted that low levels of discrimination based on ethnicity, including indicators such as skin colour, does occur in Myanmar, and the applicant was likely to have been subjected to this type of discrimination during his schooling and teenage years sufficient to cause him fear and anxiety, and which “in some respects may have amounted to serious harm” but ultimately found: CB 203 at [63]-[66]:
63. The central question is whether there is a real chance of him being seriously harmed on the basis of his religious background, and/or because of his ethnic background and skin colour.
64. The confrontation with the group of Buddhist boys occurred 13 years ago. Whether one of the boy's fathers was a member of the village leaders or not, I consider there is no chance or risk of the applicant facing any harm in association with this past confrontation. In my assessment, this was a confrontation between teenaged boys, and while the catalyst may have been religious difference, I am not satisfied it was indicative of the applicant having any wider or ongoing profile.
65. While unspecified, I accept he may have faced other discrimination or mistreatment in the past because of his religion and ethnic profile. I have accepted the applicant was harmed and mistreated at school in the past, in some respects quite seriously considering his vulnerable age and position. However, I also give weight to the fact that he was able to attend a Buddhist School in the first place. This at least indicates to me that he came from a village that did not prevent Muslim boys and girls from attending school.
66. The applicant is now around 30 years old. He is a mature, travelled and married father of one. He has experience living and working in Myanmar and Malaysia, as well as living in Australia. He is not the vulnerable boy that he was when he attended school, as he is no longer a teenager that would unwisely involve himself in violent confrontations. There is no suggestion that he would seek to return to school. Even if he were to return to school in some sense, I consider he no longer possesses the vulnerabilities he had as a small child;
f)the IAA further indicated that the applicant did not claim to fear any harm in being a Muslim of Indian, Chinese, Anglo-Burmese or Nepali descent, all of whom suffered some institutional barriers in having their citizenship status recognised in Myanmar, rather he provided inconsistent claims of his ethnicity variously claiming to be a Rohingya Muslim, a Burmese Muslim and a Bengali Muslim: CB 199 at [36] and [40];
g)the IAA had serious doubts regarding the applicant’s claims of practising as a Muslim when he was unable to explain key aspects of the faith, and his explanation of being “illiterate” was inconsistent with other evidence he had been educated at a local school: CB 196. Despite raising these doubts, the IAA ultimately accepted the applicant was a Muslim and considered his claims with reference to country information: in particular it should be noted the incident of violence against Muslims in Myanmar the applicant referred to in his Safe Haven Visa interview and his application was clearly considered at CB 202 at [59]:
59. In early 2013, a dispute between a female Muslim shopkeeper and a female Buddhist customer in Meiktila escalated into mob violence when rumours spread that the customer had been beaten to death. Community sentiments were further inflamed following the subsequent, possibly unrelated, murder of a Buddhist monk by a Muslim man, which led to two further days of rioting involving more than 1,000 people. Forty-four people reportedly died in the violence, both Muslims and Buddhists. I note that this appears to be the incident referred to by the applicant's father in his written statement, but note that it did not involve Rohingya Muslims as indicated in his written evidence;
h)taking into account the applicant’s evidence and the country information and weighing them as the IAA saw fit, as the IAA was entitled to do: Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1 at [32] per Sundberg, Emmett and Conti JJ, the IAA made logical and reasonable findings in considering the applicant’s claim of fear of persecution for reason of being a Muslim:
69. The evidence before me is that many Muslims, principally Rohingya, have faced serious discrimination and serious harm throughout Myanmar's history. The evidence before me also indicates that Burmese Muslims outside of Rakhine state experience moderate levels of societal discrimination and low levels of official discrimination. And that Muslims outside of Rakhine state face a low risk of societal violence on a day-to-day basis. Further, Muslims outside of Rakhine State that belong to ethnic groups that are among those recognised under the Constitution. These groups do not face significant restrictions on access to citizenship, and therefore enjoy a greater level of formal legal protection from discrimination.
70. Given the country information before me, I accept the applicant would face a moderate level of societal discrimination and low levels of official discrimination on the basis of religion. However, I also note that as a citizen he would possess a greater level of formal legal protection from discrimination, in contrast to the situation faced by Muslims in the country that lack citizenship or documentation. In this regard, I again note that his family owned a small business in the past, that his birth was registered, that the applicant was able to access schooling, and that he worked in transportation prior to leaving for Malaysia. I also note that his father returned to live in the country:
CB 204 at [69]-[70];
i)the IAA made specific findings on each of the applicant’s claims, notwithstanding serious doubts as to the credibility of those claims, and concluded that:
i)in “a cumulative sense … any discrimination he may face on the basis of his religion, ethnic background or skin colour would not elevate to a level that amounts to serious harm”: CB 204 at [72];
ii)in “terms of physical harm, … the prospect of the applicant being seriously harmed on the basis of his cumulative religious or ethnic profile (including skin colour) is also remote”: CB 204 at [72]; and
iii)it was “satisfied that there is no real chance of the applicant being seriously harmed on the basis of his religion, his ethnicity, his skin colour, his citizenship or documentation status, or any other related profile, or in any cumulative sense, if he were to return to Myanmar in the reasonably foreseeable future”: CB 204 at [73]; and
j)the IAA concluded that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act, and did not meet the criteria in s.36(2)(a) of the Migration Act: CB 204 at [74], and having considered whether there was a real risk of significant harm for the purposes of s.36(2A) of the Migration Act concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Myanmar, there was a real risk that the applicant would suffer significant harm, and that the applicant therefore did not meet the criteria in s.36(2)(aa) of the Migration Act and was not entitled to complementary protection in Australia.
The adverse credibility findings made by the IAA are findings of fact open to be made on the evidence before the IAA, and as such are findings that ought not be interfered with on judicial review: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J.
The IAA as the decision-maker was required by the Migration Act to consider the claims and criteria and determine whether the applicant satisfied “the particular criteria which the [Delegate] considered to be determinative”: BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169 at [87] per Charlesworth J. The Delegate rejected each of the applicant’s claims based on the inconsistencies in his evidence and the finding he had contrived his claims for the purpose of the Safe Haven Visa application: CB 183. The IAA, while considering the applicant’s credibility was an issue, did not consider it determinative of the applicant’s Safe Haven Visa application, rather considered it as a factor when assessing other evidence and making findings regarding the applicant’s claims to meet the criteria in ss.5H, 36(2)(a) and (aa) of the Migration Act. In circumstances where the IAA has:
a)considered and assessed all of the material and evidence before the Delegate in the detailed manner set out at [7] above;
b)had regard to the applicant’s credibility and made credibility findings which were open on the evidence: see [18] above; and
c)drawn various conclusions from its consideration and assessment and credibility findings, as set out at [7] and [17] above,
and did so before concluding that the Delegate’s Decision not to grant the applicant the Safe Haven Visa was to be affirmed, the IAA clearly engaged in an active intellectual process with the applicant’s claims for a Safe Haven Visa and whether the applicant satisfied the relevant criteria under the Migration Act: Carrascalao at [45]-[46] per Griffiths, White and Bromwich JJ.
The Court finds that ground 1 establishes no jurisdictional error in the IAA Decision.
Ground 2
Taken literally, ground 2 of the Judicial Review Application cannot succeed because no “Assessor” was involved in any process in relation to the applicant’s Safe Haven Visa application. If, however, the reference to the “Assessor” is taken to be a reference to either:
a)the Delegate who interviewed the applicant in relation to his Safe Haven Visa application; or
b)a reference to the IAA which reviewed the applicant’s Safe Haven Visa application on the papers,
neither gives rise to jurisdictional error in the IAA Decision for the reasons which follow.
The Delegate conducted an interview with the applicant and asked questions of him regarding the claims he made in the Safe Haven Visa application, and for this reason the Court therefore infers the applicant was likely referring to the Delegate as opposed to the IAA in ground 2. That the applicant has specified “one aspect of my claims” implies he was given an opportunity to comment on all other aspects of his claims.
Should the error the applicant refers to be the Delegate not providing an opportunity to comment on one aspect of his claims, this ground cannot be impugned on the basis of jurisdictional error because a finding made in the Delegate’s Decision is a primary decision and not a decision this Court has the jurisdiction to review: Migration Act, s.476(2)(a) and (4). Further, if the IAA Decision is not flawed it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J; AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 at [10] per Judge Lucev.
If the applicant is suggesting the IAA failed to give him an opportunity to comment on one aspect of his claims this is misconceived when one has regard to the statutory obligations of the IAA in Pt.7AA of the Migration Act, and is contrary to the evidence and material before the Court. Pursuant to s.473DB of the Migration Act, the IAA is to conduct a review and make a decision on the papers: expressly without the need to provide an opportunity for the applicant to provide further information or to interview the applicant and provide an opportunity for comment: Migration Act ss.473DB(1)(a)-(b), 473DC(2). Where the IAA does invite an applicant to provide new information under s.473DC of the Migration Act, the IAA is subject to, and the new information must satisfy, the statutory criteria in s.473DD of the Migration Act in order for the IAA to consider the new information at all in making its decision. The applicant’s claim is misconceived in the sense that there was no obligation for the IAA to provide him an opportunity to comment on any aspect of his claims.
The applicant was sent a standard document from the IAA attached to which was an information sheet explaining the IAA process, and inviting the applicant to provide any “new information” to the IAA: CB 189-190. The applicant did not provide any “new information” for the IAA to determine if it should consider that information, but even if he had, anything provided was subject to the statutory restrictions in s.473DD of the Migration Act, and the discretion of the IAA to have regard to such: Migration Act s.473DB.
The Court finds that ground 2 establishes no jurisdictional error in the IAA Decision.
Otherwise
The Court also independently considered whether the IAA Decision might be affected by some other jurisdictional error: MZAIB at [100] and [112] per Mortimer J, but is of the view that there is otherwise no discernible jurisdictional error in the IAA Decision.
Conclusion and Orders
The Court has found no jurisdictional error can be established in ground 1 or 2 of the Judicial Review Application, nor is any jurisdictional error apparent to the Court on the face of the IAA Decision read as a whole.
For those reasons, on 9 March 2018, the Court made the orders as stated in [3] above.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 28 March 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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