FEY17 v Minister for Immigration

[2018] FCCA 3650

FEDERAL CIRCUIT COURT OF AUSTRALIA

FEY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3650

Catchwords:
MIGRATION – Assertion that the applicant was stateless found to be without foundation – authority had properly considered all of applicant’s claims – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa), 473CB

Cases cited:

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

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: FEY17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1174 of 2017

Judgment of: Judge Egan

Hearing date: 8 November 2018

Date of Last Submission: 8 November 2018

Delivered at: Brisbane

Delivered on: 8 November 2018

REPRESENTATION

Applicant: Self-represented

Solicitors for the Respondents: MinterEllison

ORDERS

1. The Application for review filed on 4 December 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1174 of 2017

FEY17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was found to be a citizen of Bangladesh in the reasons of the Immigration Assessment Authority (“the Authority”) when handing down its decision on 9 November 2017.

2. The applicant arrived in Australia on or about 18 March 2013.  He advised the Court today that after the vessel on which he had boarded was intercepted, that vessel was taken directly to Christmas Island.  There was some concern expressed by a solicitor and migration agent as to whether that was in fact the case, and whether it had in fact arrive at Ashmore Reef, in which case other considerations might have to be considered.  That solicitor was named Camille Smith-Watkins.

3. As a result of the concern expressed by the solicitor, the Court opted to directly call the solicitor to attempt to clarify the matter in her capacity as an officer of the Court.  Ms Smith-Watkins was sworn.  She gave evidence, when asked about the identity of the vessel on which the applicant was said to have entered Australian waters, that such vessel was on a list of vessels suspected of being a vessel which made landfall first at Ashmore Reef.  There is at present a controversy concerning Ashmore Reef as to the status of maritime arrivals at such location.

4. Ms Smith-Watkins properly raised the issue with the Court, but as a result of statements made to the bench by the applicant through an interpreter, the Court is satisfied that there was no involvement of Ashmore Reef relevantly in this matter.

5. The applicant, after his arrival in Australia, was invited to apply for a Temporary Protection (Subclass 785) visa (referred to as a SHEV) on 10 March 2016. An application for a SHEV was lodged by the applicant on 18 May 2016. On 5 April 2017, a delegate of the first respondent refused to grant the applicant a SHEV. The delegate’s decision was a fast track reviewable decision and was referred by the first respondent to the authority on 11 April 2017 for review. The Authority had regard to the review material provided by the secretary pursuant to section 473CB of the Migration Act 1958 (Cth) (“the Act”).

6. On 2 May 2017, the authority received a submission from the applicant which purported to refute a number of the delegate’s findings.  The authority regarded the submission as containing argument rather than new information, and, therefore, considered the submission and the arguments raised therein (see [3] of reasons of authority at court book 29).  On 9 November 2017, the authority affirmed the decision not to grant the applicant a SHEV (see court book 23-25).

7. The applicant claimed to be stateless because he was refused a national identity card in Bangladesh in the year 2000, despite the evidence that he and his parents had been born in Bangladesh.  The applicant claimed to fear being killed because he could not prove he was a Bangladeshi citizen and would not be able to get the assistance of the police without identity documents (see applicant’s claims for protection at [4] of reasons at court book 29-30 inclusive).

8. The applicant also claimed to fear harm from the Muslim community in Bangladesh because he was a Hindu.  The applicant claimed that the Hindu majority in his village was targeted from 2008 onwards, and he recited three incidents in support of his protection claims.

9. The Authority did not accept the applicant’s claim to be stateless, finding, as it did at [9] of its reasons, that the applicant was a Bangladeshi citizen by descent arising from his father’s Bangladeshi citizenship. It also found that the documents provided by the applicant indicated that he was recognised as a Bangladeshi national despite not holding a national identity card.

10. The authority also found that the applicant did not face a real chance of harm in relation to his statelessness claim, so finding despite the applicant not holding a national identity card (see reasons at [20]).  It was found by the authority that significant numbers of Bangladeshi citizens do not have national identity cards despite their  registration with the Bangladesh Election Commission.  To obtain a national identity card became compulsory in 2010.  The authority was satisfied that notwithstanding that the applicant did not hold a national identity card, that he was a Bangladeshi citizen, and that there was no real chance that he would be harmed in relation to those claims.

11. As to the applicant’s religious claims, the authority accepted that the applicant was a Hindu, found there to be a number of inconsistencies in the applicant’s evidence which raised concerns about the credibility of his claims (see reasons at [14] in court book 32), and also was not satisfied with the overall credibility of the applicant’s claims to have been threatened and attacked, and to have had his family home and land taken from him (see reasons at [16] in court book 34).

12. The Authority was not satisfied that the applicant’s family home had been targeted, that the applicant was forced to leave the area, or that he was threatened with a pistol.  It was also not satisfied that he would be specifically targeted by Muslims upon his return to Bangladesh (see reasons at [15] and [21]).

13. The Authority accepted that Islam was the dominant religion in Bangladesh but found that the applicant and his family were integrated into their community and did not otherwise face discrimination simply for being Hindu (see reasons at [24] in court book 36).

14. The Authority accepted that there were some violent outbursts against Hindus, but was not satisfied that the applicant would face a real chance of persecution by local Muslims, political parties or Islamic Extremists due to his Hindu religion (see reasons at [27], [28] and [30]).  The Authority also found that it was not satisfied that the applicant faced a real chance of harm from any government authority or others by reason of his being a returning asylum seeker (see [32] at court book 37).

15. Based upon those findings, the Authority found that the applicant did not satisfy the definition of “refugee” in section 5H(1) of the Act, and that he did not meet the requirements of section 36(2)(a) of the Act. The Authority, for the same reasons, also found that the applicant did not meet the requirements of section 36(2)(aa) of the Act.

16. The application filed on behalf of the applicant identified 10 grounds for review.  The first nine grounds variously assert factual errors and matters related thereto, as well as a re-statement of the applicant’s claims that he feared persecution should he be returned to Bangladesh, the applicant also alleging that he would suffer serious harm and systematic and discriminatory conduct if he was returned to Bangladesh.  Those matters are the subject of what would be required to be undertaken in the nature of an impermissible merits review and are without substance.

17. The tenth ground alleges “relevant information not considered”.  The lack of particularity of such ground is, in itself, is a disqualifying factor, but the first respondent has treated such ground as at least a valid ground for the purpose of argument.  In that regard, however, it can be seen that the Authority did consider the applicant’s claims by reference to the legislative criteria, and that it made findings of fact that were open to it for the reasons which it gave.  Those reasons were logical and causally directed to the claims made by the applicant.

18. The Authority found that the applicant did not meet the definition of “refugee” under the Act, and found that the applicant did not meet any of the protection criterion under the Act. The findings were not ones which no rational or logical decision-maker could arrive at on the same evidence (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]).

19. Nor did the authority’s reasons lack “an evident and intelligible justification” (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]).

20. The Authority complied with its procedural fairness obligations in Division 3 of Part 7AA of the Act, which is the exhaustive statement of the natural justice hearing rule in relation to reviews undertaken by the Authority.

21. There is no merit to the application for review.  It is ordered that the application be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 13 December 2018