Fau17 v Minister for Immigration

[2019] FCCA 914

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAU17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 914

Catchwords:

MIGRATION – Application for safe haven enterprise visa – adverse credibility findings – application without merit – application dismissed.

Legislation:

Migration Act 1958, ss.5H(1), 5J, 36(2), 473CB, 476

Cases cited:

MIAC v SZQRB (2013) 210 FCR 505

Minister for Immigration andCitizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: FAU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1125 of 2017

Judgment of: Judge Egan

Hearing date: 21 March 2019

Date of Last Submission: 21 March 2019

Delivered at: Brisbane

Delivered on: 21 March 2019

REPRESENTATION

Applicant: In Person

Solicitors for the Respondent: Mr King of Minter Ellison

IT IS ORDERED THAT:

1. The application for review filed on 17 November 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1125 of 2017

FAU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 21 February 2013 as an unauthorised maritime arrival.  He was invited to apply for a temporary protection (subclass 785) visa or a SHEV (safe haven enterprise visa) on 1 April 2016.  The applicant lodged an application for a SHEV on 1 August 2016.  On 22 February 2017, a delegate of the Minister refused to grant to the applicant a SHEV.  The application was subsequently referred to the Immigration Assessment Authority (‘the Authority’) for review of the delegate’s decision.  On 18 October 2017, the Authority affirmed the delegate’s decision. 

2. On 17 November 2017, the applicant filed an application for review of the decision of the Authority pursuant to the provisions of section 476 of the Migration Act1958 (Cth) (“the Act”).

3. The applicant’s claims for protection were set out by the Authority in [4] of its reasons as follows:

   ·    “The applicant is a Sunni Muslim of Bengali ethnicity and a citizen of Bangladesh who was born in Chanasukhana village, Gazipur district in Bangladesh. The applicant has four siblings who are residing in the same village in the district and his parents also continue to reside in the family home. Since the applicant's departure from Bangladesh his wife and child have been moving between his father in law's house which is located in Rangpur district approximately 400-500kms away and the applicant's parents' house.

   ·   In October 2012 the applicant was working as a truck driver for a local businessman. The applicant on this occasion had two assistants who were brothers riding on top of the truck. The brakes failed on the truck which rolled over killing the brothers. The applicant, although injured, fled from the accident as he feared being attacked by the public at the accident. The applicant did not return to his house and went into hiding in various houses in the village.

   ·   The father of the brothers and the truck owner subsequently filed cases against the applicant, one for the alleged murder of the brothers and the second for compensation. Members of AL and BNP also came to the applicant's house looking for him claiming that the brothers were members of their respective parties and threatening to kill the applicant.

   ·   The political party members are still threatening the applicant's father and his family and beat the applicant's brothers on one occasion.

   ·   The applicant fears harm from the AL and BNP who will kill him on return due to the alleged murder of their party members. He also fears being harmed by the Bangladeshi police as murderers in Bangladesh are subject to the death penalty.”

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

5. In [5] and [6] of its reasons, the Authority set out the criteria for refugee assessment as provided for in section 5H(1) and section 5J of the Act. The Authority closely examined and commented upon the applicant’s claims in [8]-[20] inclusive of its reasons. The Authority accepted that the applicant was a Bangladeshi national.

6. The Authority noted that the claims made by the applicant in his SHEV application and interview with the delegate had not been previously raised by the applicant during his arrival interview on 2 March 2013, which interview occurred approximately two weeks after the applicant’s arrival on Christmas Island ([11] of reasons).  The Authority was not satisfied by the applicant’s explanation for his not having raised his claims in that regard sooner. 

7. At [13] of its reasons, the Authority recorded that it had concerns regarding the bona fides of the applicant’s claim to have been involved in an accident, particularly as such allegation was central to his case for protection.  The Authority recorded that it was not satisfied with the applicant’s explanation for not having provided details of that claim at the arrival interview, at which time he was aware that the arrival interview was the time when he could provide reasons for his not being removed from Australia. 

8. It was noted that he had been asked on at least three different occasions why he had left Bangladesh.  On each occasion, the applicant referred to his poor economic situation and his inability to repay loans or provide sufficient income to support his family.  The Authority recorded that it was not satisfied, given that the accident was alleged to be the reason for the applicant leaving Bangladesh, that the applicant would not have mentioned it during the arrival interview.  Nor was the Authority satisfied that had the incident occurred as alleged, the applicant would have required the assurances of his fellow detainees to overcome his initial reluctance to advise his case manager of the accident. 

9. No regard was had to a document which the applicant brought to the interview, but which the applicant declined to provide an English translation of.  At [14] of its reasons, the Authority recorded that it was concerning that the applicant was unable to recall the names of those people who were allegedly killed in the accident, despite the applicant having worked with them for at least a month prior to the occurrence of the alleged accident, and where their deaths were the alleged cause of the applicant’s problems.  It was also noted that such people were from the applicant’s area. 

10. At [16] of its reasons, the Authority recorded that it was not satisfied with the overall credibility of the applicant’s claims, given the implausibility of key aspects of the claims, and the Authority’s earlier findings in relation to the applicant’s not having raised the alleged accident at his arrival interview.  The Authority did not accept that the applicant was involved in a traffic accident in his home area which resulted in the death of two work colleagues. 

11. The Authority was also not satisfied that the applicant was charged or was wanted by the police for murder, or that a compensation case had been lodged against the applicant, nor was it satisfied that the applicant had gone into hiding for that reason, or for the reason that he would be arrested upon his return to Bangladesh by Bangladeshi authorities. 

12. The Authority was not satisfied that the applicant’s family had been threatened and harassed by the AL and BNP members prior to his departure from Bangladesh, or that his family members had been visited since his departure from Bangladesh, or that his brothers had been beaten.  At [17] of its reasons, the Authority held that it was not satisfied that the applicant faced a real chance of persecution from the AL, BNP, government authorities, or any other people due to the alleged traffic incident. 

13. At [18] and [19] of its reasons, the Authority dealt with the question of the treatment of the applicant as a failed returning asylum seeker should he be returned to Bangladesh.  It noted that DFAT assessed that most returnees, including asylum seekers, were not subjected to adverse attention regardless of whether they had returned voluntarily or involuntarily. It noted that the authorities might take an interest in high profile individuals who had engaged in political activities outside Bangladesh, including people who had been convicted of war crimes in absentia. 

14. At [20] of its reasons, the Authority recorded that it was not satisfied that the applicant would be targeted on return to Bangladesh as a returning asylum seeker. It found that the applicant had not been involved in any political activities in Bangladesh or in Australia, and that there was no credible evidence of any involvement in criminal activity in Bangladesh. The Authority was not satisfied that the applicant faced a real chance of any harm by government authorities or others by reason of his being a returning asylum seeker. It was recorded that the Authority found that the applicant did not meet the relevant section 36(2)(a) criteria.

15. Based on the decision in MIAC v SZQRB (2013) 210 FCR 505, the Authority found that the applicant did not meet the relevant complementary protection criteria as set out in section 36(2)(aa) of the Act for the same reasons as in respect of its findings as to the applicant’s refugee status.

16. The Authority has closely examined all relevant aspects of the applicant’s claims.  The Authority did not fail to make an obvious enquiry about a critical fact. [1]

    [1]        See Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25].

17. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the Authority.  As was said by Crennan and Bell JJ in Minister for Immigration andCitizenship 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.”

18. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered 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.”

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

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

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  28 March 2019