FAH19 v Minister for Immigration

[2020] FCCA 2555

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAH19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2555

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to correctly apply s 473DD of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 473FB.

Applicant: FAH19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3319 of 2019

Judgment of: Judge Street

Hearing date: 10 September 2020

Date of Last Submission: 10 September 2020

Delivered at: Sydney

Delivered on: 10 September 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Mr S Valliappan, MinterEllison, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 10 September 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3319 of 2019

FAH19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTUCULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (‘the Act”), in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 26 November 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a national of Bangladesh, and his claims were assessed against that country. 

3. The applicant claimed to fear harm because he alleged that he was stateless in Bangladesh. The applicant also claimed to fear harm from the Awami League. The applicant alleged that he was threatened and beaten by the Awami League many times, and in 2009 he fled to Malaysia, and then he returned to Bangladesh after five or six months.

4. The applicant then claimed that he fled to India in 2010 and was deported and returned to Bangladesh in late 2012. The applicant returned to his former job and alleged that he faced harassment. The applicant alleged that his father lodged a complaint about the Awami League with the police, who demanded money from him, and he refused to pay the same and then the applicant went into hiding. The applicant alleged that the Awami League have made contact with his family, threatening the applicant. 

5. On 9 October 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The Authority wrote to the applicant on 14 October 2019 explaining that the application for the visa had been referred to the Authority for review.  The Authority’s letter provided an attached fact sheet and Practice Direction providing the applicant an opportunity to put on new information and submissions. 

6. The Authority identified the background to the Safe Haven Enterprise visa application and had regard to the material given by the Secretary under s 473CB of the Act. 

7. The Authority expressly identified the whole of the limbs of section 473DD of the Act, including both limbs of s 473DD(b), in para 3 of its reasons.

8. The Authority found that, insofar as the applicant’s submissions engaged with the Delegate’s decision, it was not new information and had regard to the same. 

9. The Authority identified the information that failed to comply with the Practice Direction and referred to an explanation advanced of alleged fraud by the applicant’s former migration agent, which the Authority rejected. 

10. The Authority found that the Safe Haven Enterprise visa application had been prepared with the instruction of or advice from the applicant. 

11. The Authority identified the process that had occurred during the conduct of the Safe Haven Enterprise visa interview and noted that the applicant was given a real and meaningful opportunity to respond to the Delegate’s concerns in respect of the applicant’s claims. 

12. The Tribunal then identified new information and was not satisfied that it met the requirements to justify considering the new information. 

13. The Tribunal summarised the applicant’s claims and identified the applicable law incorporated in an attachment, by pagination, to the Authority’s reasons. 

14. The applicant was found to be a Sunni Muslim of Bengali ethnicity. The applicant was also found to be a national of Bangladesh and the Authority rejected the applicant’s claims that he was stateless. The Authority took into account in that regard the applicant’s own statement that he became a Bangladeshi citizen on 20 February 1990 when he returned from India, where he was born, with both his parents who are citizens of Bangladesh.

15. The Authority referred to the applicant’s claim to have been a supporter of the Jamaat-e-Islami who was repeatedly targeted for harassment and extortion by Awami League activists. The Tribunal identified serious concerns in relation to the credibility of the applicant’s claims and referred to the substantially inconsistent account that he had given at his entry interview. The Authority also took into account the lack of documentary evidence in support of the applicant’s claimed involvement with Jamaat-e-Islami. 

16. The Tribunal found the applicant’s claims concerning being the victim of repeated extortion attempts to be vague and unpersuasive and, after taking into account country information, was not satisfied that the applicant is or has ever been a member or supporter of Jamaat‑e‑Islami or that he was the personal target of repeated extortion attempts by Awami League activists or that he was ever a person of adverse profile with Awami League activists for any other reason. The Authority was not satisfied that the applicant has ever been threatened by Jamaat-e-Islami or that he has an adverse profile with that group on account of being a former member. 

17. The Authority was not satisfied that any member of the applicant’s family has been threatened by Awami League activists. 

18. After further referring to the relevant law and country information, the Authority was not satisfied that the applicant faces a real chance of harm on the basis of being a former member of Jamaat-e-Islami who was targeted by the Awami League, or on the basis that he departed Bangladesh without a valid travel document or because he sought asylum in Australia. 

19. The Authority found that the applicant failed to meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant failed to meet the criteria in s 36(2)(a) of the Act. 

20. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Bangladesh, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 16 December 2019 and on 29 January 2020, this Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such document has been filed.

2. At the commencement of the hearing today, the Court explained to the applicant the nature of the hearing, and the applicant confirmed that he understood what the Court had said. 

3. The applicant maintained that his situation was very bad and that he had explained his problems and that he could not go back to Bangladesh and that he would suffer harm if he did so. 

4. The Authority and the Delegate found that the applicant did not face a real chance or a real risk of significant harm or real harm if returned to Bangladesh in the reasonably foreseeable future. The applicant’s disagreement with the adverse findings by the Authority, in substance, invite impermissible merits review.

5. The applicant also referred to his health and his personal situation. 

6. This Court has no power to determine the matter on compassionate or discretionary grounds. The Authority provided logical and rational reasons in support of the adverse findings, dispositive of the applicant’s claims. The Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. 

7. Nothing said by the applicant identifies any jurisdictional error by the Authority. 

The ground

1. The ground in the application is as follows:   

   Ground One:

   The IAA has failed to apply the correct test.

   Particulars:

   The IAA breached section 473DD of the Migration Act 1958 (Cth) in dealing with submissions advanced by the Applicant in determining whether "exceptional circumstances'' exist by effectively failing to take into account the matters referred to in section 473DD(b)(ii) of the Act.

Ground 1

1. Contrary to the assertion advanced in that ground, it is apparent that the Authority expressly identified the whole of the limbs of s 473DD of the Act. 

2. The Authority’s reasons reflect identification of the new information and are consistent with the Authority correctly applying the statutory provision in determining whether there are exceptional circumstances to justify considering the new information. 

3. There is no basis to find that the Authority failed to take into account s 473DD(b)(ii) of the Act.

4. The Court accepts the first respondent’s submission that it was open to the Authority not to be satisfied as to the applicant’s explanation for the delay and to reject the applicant’s explanation as to the want of supporting material because of the alleged fraud of the agent. 

5. The Authority found that the standard of interpretation was competent and effective and that the applicant had a proper opportunity to advance his claims in evidence before the Delegate. 

6. The Authority’s adverse findings in relation to the applicant’s explanations concerning the new information were open for the reasons given by the Authority. Further, it was open to the Authority to reject the country information references under s 473FB(5) of the Act in light of the applicant’s non-compliance with the Practice Direction. 

7. The Authority’s reasons in relation to the three documents and country information reflect a genuine consideration of each limb under s 473DD(b) of the Act. 

8. There is no apparent error in the Authority’s reasons in support of the adverse findings under s 473DD of the Act. The Court has taken into account that the Authority’s reasons are not to be read with a keen eye for error. 

9. No jurisdictional error, as alleged in ground 1 of the application, is made out. 

10. As the application fails to make out any jurisdictional error, the application is dismissed. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 September 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 13 October 2020