Ezb17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 625
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EZB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 625
File number(s): SYG 3501 of 2017 Judgment of: JUDGE LAING Date of judgment: 8 August 2022 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority affirming decision not to grant a protection visa – whether the Authority failed to consider integers of the applicant’s claims – whether the Authority misconstrued material before it – whether the Authority misapplied the real risk test – application dismissed. Legislation: Migration Act 1958 (Cth) s 36 Cases cited: CBN17 v Minister for Immigration and Border Protection [2018] FCA 788
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 29 July 2022 Solicitor for the Applicant: The applicant was self-represented Solicitor for the First Respondent: Mr E Taylor of Mills Oakley Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3501 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EZB17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
8 AUGUST 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs, fixed in the amount of $7,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made on 18 October 2017. The Authority affirmed a decision made by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Bangladesh. He is an ethnic Bengali and a Sunni Muslim.
The applicant arrived in Australia on 24 March 2013 as an unauthorised maritime arrival. He attended an Entry Interview on Christmas Island on 7 April 2013. He also attended a Case Assessment & Biodata Interview.
On 10 March 2016, the applicant was invited to apply for a protection visa.
On 17 May 2016, the applicant applied for the visa. In a statutory declaration provided in support of the application, the applicant claimed to fear harm in Bangladesh arising from his and his father’s involvement with the Jamaat-e-Islami political party. He claimed that, as a consequence of his political affiliation, he was targeted with threats and assaults. He also claimed he was the subject of a false murder charge after being attacked by Awami League supporters in 2012, and that he was wanted by the Bangladeshi police. In support of his claims, the applicant provided:
·an English translation of what was said to be a “First Information Report” relating to the murder charge;
·a translation of a “Notice to Accused” requiring the applicant to appear before a court in relation to an allegation under the Criminal Procedure Code; and
·an undated letter in English, from a “Dr” stating the applicant had received treatment in 2011 for “cuts, wounds and … critical lower left jaw pain”.
The applicant attended a visa interview conducted by the Department of Immigration and Border Protection (as it was) (Department) on 21 December 2016.
On 13 January 2017, the Delegate refused to grant the applicant a protection visa.
The matter was referred to the Authority on 18 January 2018.
On 18 October 2017, the Authority affirmed the decision to refuse the applicant a protection visa.
THE AUTHORITY’S DECISION
The Authority accepted the applicant’s identity as an ethnic Bengali, Sunni Muslim, and national of Bangladesh (at [6]).
The Authority expressed significant concerns from [7] to [23] of its reasons in relation to the credibility of the applicant’s claims and the credibility of documents provided. These were summarised at [23] as follows (footnotes omitted):
23.At the December 2016 SHEV interview the applicant stated that, some two-and-a-half months earlier (in around October 2016), his father had presented himself to the court and had been jailed. No documentary evidence of these 2016 court events have been provided by the applicant. As has been discussed above, when the applicant was invited to explain or expand on his claims in a manner that went beyond the details provided in his written statement his evidence proved unconvincing and raised serious doubts about the credibility of his claim that he and his father were involved in Jamaat and that he, and also his father, had been targeted in a succession of Awami League attacks which ultimately led to the his going into hiding and the bringing of false charges against him, and his father, and which led him to flee the country. The applicant has provided purported translations of the FIR he claims was lodged against him, and a magistrate's 'Notice to accused' directing him to appear in court, but he has never provided the original Bengali documents which these translations purport to translate and, given this, I have doubts about whether such original documents have ever existed and I give the translations of these purported documents no significant weight as evidence of the applicant's claims. The purported doctor's certificate, though it refers to the applicant as having received treatment… following a serious physical assault, provides no information regarding the circumstances of this assault. Significantly, the document provides details of injuries different to those emphasised by the applicant. Given this, and given the ease with which documents can be fraudulently obtained in Bangladesh, I have my doubts about the credibility of this document also and I give it no significant weight as evidence of the applicant's claims. Such evidence does not overcome the serious doubts raised by the manner in which the applicant's evidence proved unconvincing, and sometimes implausible, when he was asked to explain or expand upon the details provided in his prepared statement. This, in concert with the fact that the applicant had at his entry interview stated that neither he nor his family had ever been involved in any political activities, seriously undermines the credibility of the applicant's claims.
Having set out its reasons for doubting the credibility of the applicant’s claims and the documents provided by the applicant, the Authority stated its findings on the applicant’s claims at [24]:
24.I do not accept that the applicant, or his father, were ever involved in Jamaat or Jamaat that they were ever Jamaat supporters. I do not accept that the applicant would have any interest in supporting or involving himself with Jamaat upon return to Bangladesh. I do not accept that that the applicant or his father have ever been harassed or assaulted by Awami League supporters, or that he or his father have been accused of murder or any other crimes or that the applicant is wanted in this regard, or that the applicant's father has presented himself to a court and been imprisoned in such a regard. I am therefore not satisfied that the applicant would face a real chance of harm of any kind in Bangladesh for reason of being, or of being perceived to be, a Jamaat supporter or the son of a Jamaat supporter, nor am I satisfied that the applicant would face a real chance of being arrested, convicted and jailed on a false charge of murder brought against him by the Awami League for political reasons, or of his being beaten by the police or the Awami League or any other actor in such a regard.
Having regard to independent country information, the Authority was not satisfied that there was a real chance that the applicant would suffer harm if returned Bangladesh on the basis that he would be unable to earn sufficient money or food to survive, or that he may be harmed by way of a hartal, or corruption, or for any other reason (at [25]-[26]).
The Authority accepted that the applicant departed Bangladesh by boat without a passport in an unlawful manner, but citing DFAT Country Information, noted that most returnees, including asylum seekers, are not subjected to adverse attention. The Authority was therefore “not satisfied that there is a real chance that the applicant would be jailed or killed, or harmed in any way, by the Bangladesh government or its authorities for reason of his having departed Bangladesh unlawfully or for any other reason” (at [27]).
Having considered the applicant’s claims, the Authority found the applicant was not a person in respect of whom protection obligations were owed. It stated at [28]:
28.Having regard to the totality of the applicant's circumstances, I am not satisfied that the applicant would face a real chance of harm of any kind for any reason if he were to return to Bangladesh. I am therefore not satisfied that the applicant would face a real chance of serious harm if he were to return to Bangladesh.
For the same reasons, the Authority found that it was not satisfied that the applicant would face a real risk of harm. Having found that the applicant was not owed protection obligations, the Authority affirmed the Delegate’s decision (at [32]-[33]).
PROCEEDINGS BEFORE THIS COURT
These proceedings were commenced on 15 November 2017 by an application containing the following grounds:
Grounds of application
The Immigration Assessment Authority made a jurisdictional error when it failed to consider each integer of my claim or failed to take into account the whole of the oral and written evidence in determining whether I have well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in Bangladesh and if not whether there are substantial grounds for believing that, as a necessary and foreseeable consequences of me being removed from Australia to Bangladesh, there is a real risk that I will suffer significant harm.
Particular: My claims that whatever I forwarded oral and written evidence to the Department and the IAA are true and correct. The IAA either mistook to facts or misunderstood the facts. I provided a reasonable and possible oral and written evidence in support of my claim for the Protection Visa but the First Respondent and the Second Respondent did not accept as genuine.
As a truthful witness I said to the IAA that because of My family long-time political association with the Jamaat-e-Islami. I and my family suffered harm from the leaders and supporters of ruling Political Party Awami League. I gave a solid evidence about my fear from the Awami League supporters and why I would be targeted by the Awami League Party workers when I will compel to go back to Bangladesh.
My claims that I and my entire family worked for the Jamaat-e-Islami. My family worked hard for Jamaat-e-Islami and because of that I was threatened by the Awami League Party workers. Because of fear of life I left Bangladesh.
I and members of my family were tortured because of my family's active role in the Jamaat-e-Islami. I was harassed many times by the Awami League Party workers.
I lived in fear and I decided to leave the country in 2013 because I did not have reasonable protection from local authorities. The local authorities were guided by the local Awami League Party leaders. My claims the IAA failed to account this matter and mistook the facts.
My claims that not considering the recent information about the atrocities committed by the Awami League is an error or a path leading to error, error is itself is failure to perform the statutory task imposed on the IAA by the Migration Act.
The IAA made a jurisdictional error when it discarded all the written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons.
Particular:
In the decision the IAA found that there was inconsistency between I gave at the Departmental interview and my written claims.
My claims that the IAA misunderstood most of the facts forwarded by me in the department.
I simply claims that in Bangladesh I will be persecuted once I will be known to the Government or the public that I actively work for Jamaat-e-ISLAMI.
The IAA mistook the facts and believed that I had fabricated the claims to make a claims for protection Visa. The Tribunal made this issue of credibility.
I was given chance to present new evidence or expansion of my arguments in the IAA and I forwarded all evidence in support of my claim as a member of Jamaat-e-Islami. The IAA misconstrued the facts. Whatever I said in support of my claim was true.
The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958 The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.
Particulars:
The IAA ignored the relevant consideration related with complementary Protection set out in s 36(2) (aa). The harm or the mistreatment feared by me on return to Bangladesh is for reason of one or more of five grounds of recognized in the Refugee Convention. During interview, I clearly indicate that I did not understand interpreter interpretation English to Bengali or Bengali to English. Because my local Bengali accent is very much different from regular Bengali speaking. I have genuine fear of persecution because of my Jamaat-e-Islami political opinion in Bangladesh and if I compelled to go back I will face persecution the Government and the Awami League Party workers were trying to harm me.
It is sure that if I compelled to go back to Bangladesh I will killed by the Awami League supporters and harassed by them as it is happening now with all of them who returned to Bangladesh. As I forwarded many documents of atrocities committed by the Awami League Supporters in Bangladesh, the Tribunal did not account as genuine. My claims that reason for fear comes under the Complementary Protection Provision.
Ground 1
Ground 1 contended that the Authority failed to consider integers of the applicant’s claims and failed to take into account the whole of his evidence. The particulars contended that the Authority “mistook” or “misunderstood the facts” as it did not accept that his claims were genuine, despite his evidence. The Authority was additionally contended to have not considered “recent information about the atrocities committed by the Awami League”.
Neither the particulars to the ground nor the applicant’s submissions at hearing identified any specific integer of his claims, or evidence, that was before the Authority and that the Authority failed to take into account.
The applicant did at hearing take specific issue with the Authority’s rejection of certain documents that he had submitted. Those documents were described by the Authority at [23] as “purported translations of the FIR he claims was lodged against him, and a magistrate’s ‘Notice to accused’ directing him to appear in Court”. The Authority was unwilling to place significant weight on these documents in circumstances where no originals had been provided. The Authority also had regard to country information indicating the availability of fraudulent documents in Bangladesh. These matters were logically capable of supporting the conclusion reached by the Authority in relation to the documents, particularly within the context of the other issues that it had identified with his evidence. Whilst a different decision maker may well have reached a different conclusion, it does not follow that the conclusion reached was unavailable.
The applicant sought the opportunity to put further evidence before the Court in support of his claims that was not before the Authority. This was stated to include recent country information regarding the situation in Bangladesh that post-dated the Authority’s decision. However, as I discussed with the applicant, I did not see how such evidence could assist him in demonstrating relevant error on the part of the Authority. The Authority committed no legally relevant error in failing to consider evidence that was not before it and unavailable to it at the time of its decision.
The balance of the particulars, and the matters raised in support of the ground at hearing, sought to persuade the Court that the applicant’s claims to protection were genuine.
At the hearing, I endeavoured to explain the limitations of the Court’s role on judicial review. This Court has no power simply to revisit the merits of the Authority’s decision. Its powers are limited to determining whether the decision and the approach taken by the Authority were lawfully open on the evidence that was before it.
What the applicant is really seeking in relation to ground 1 is for the Court to revisit and re-determine the merits of the Authority’s decision. This Court has no jurisdiction to undertake such a review.
Ground 2
Ground 2 contended that the Authority “discarded all the written submission without giving any solid evidence of cumulative credibility concern”. The balance of the matters raised under this ground appeared to contend that the Authority misunderstood or misconstrued the material before it in not accepting that the applicant’s claims were true.
Like ground 1, ground 2 seeks for the Court to engage in impermissible merits review.
As I discussed with the applicant at hearing, the Authority was not required to have “rebutting evidence” in order to find that a particular claim had not been made out: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65].
The Authority gave reasons for its non-acceptance of the applicant’s claims. Those reasons are summarised above. They appear, on my reading, to have been open to the Authority. The applicant has not raised any matter indicating that the reasoning was logically closed to the Authority, beyond disagreement with the Authority’s decision.
As ground 2 does not identify any legally relevant error, it is unable to succeed.
Ground 3
Ground 3 contended that the Authority failed to apply the correct test (the real risk test) required by s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). In this regard, there is nothing on the face of the Authority’s decision to indicate that it misapplied the real risk test. That test was set out, correctly, by the Authority at [30] of its decision. It was applied at [32]. Whilst the Authority did rely upon earlier factual findings in applying the test for the purposes of s 36(2)(aa), it was open to it to do so: CBN17 v Minister for Immigration and Border Protection [2018] FCA 788 at [31].
In relation to this ground, the applicant additionally submitted that he was unable to understand the interpreter at his interviews because of the interpreter’s different dialect and background. He submitted that the same interpreter was used during interviews in Brisbane and at Christmas Island.
A fundamental difficulty with this contention, however, which was discussed with the applicant at hearing, is that the applicant has put forward no evidence (such as a transcript) confirming specifically what was or was not said at his interviews. Nor is there any other evidence before the Court capable of supporting the applicant’s contention that he was unable to understand the interpreter(s) used. The evidence before the Court does indicate that the applicant was assisted by a migration agent at his SHEV interview with the Department. Despite this, there is no indication in the materials that an issue with the standard of interpretation was raised, either during or after the interview.
In the absence of any evidence capable of supporting it, the ground is unable to succeed.
Other matters
Noting that the applicant is unrepresented, I have also reviewed the materials with a view to determining whether there might be some legally relevant error in the process or decision of the Authority that was not identified by the applicant. I have been unable to identify any such error.
CONCLUSION
For the above reasons, I am required to dismiss the application.
In the event that he was successful, the Minister sought costs fixed in the amount of $7,000. I accept that this amount is reasonable in the circumstances of this case and having regard to the Court’s scale.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 8 August 2022
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