FHM17 v Minister for Immigration
[2018] FCCA 3651
•8 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FHM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3651 |
| Catchwords: MIGRATION – Assertion by applicant that he was stateless – authority found claims to be without foundation – no jurisdictional error established – application for review 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 |
| Applicant: | FHM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 1192 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 |
THE COURT ORDERS ON A FINAL BASIS:
The Application for review filed on 4 December 2017 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the amount of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1192 of 2017
| FHM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The Applicant was found to be a Bangladeshi citizen by the Immigration Assessment Authority in its decision handed down on 16 November 2017 (see reasons at [22] at court book 168). The Applicant arrived in Australia on 24 March 2013 as an unauthorised maritime arrival. He was invited to apply for a temporary protection visa (a SHEV) on 18 February 2016. The Applicant lodged an application for a SHEV on 15 May 2016.
On 10 February 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 Immigration Assessment Authority (“the Authority”) on 15 February 2017. The Authority had regard to the review material provided to it pursuant to the provisions of section 473CB of the Migration Act 1958 (Cth) (“the Act”). On 27 February 2017, the Authority received a submission from the Applicant. The Authority considered the submission. It did not constitute the provision of any new information. On 16 November 2017, the Authority affirmed the decision not to grant the Applicant a SHEV.
The Applicant claimed to be stateless, although he, his parents and his grandparents were all born in Bangladesh. The Applicant claimed that his birth was never registered because the Government did not give citizenship to children born to parents who supported the Jamaat-e-Islami party (JI). The Applicant claimed to fear harm for the following reasons:
a)because he had no identity documents, could not provide citizenship, and would be treated like an illegal immigrant upon his return to Bangladesh;
b)because his father was a retired member of the JI party and had consistently received threats from local members of the Awami League opposed to JI;
c)either because of his father’s support for the JI party or his own imputed support for the party, and;
d)because he had departed Bangladesh illegally to seek asylum.
Those claims were as set out in [4] of the reasons at Court Book (“CB”) 161. The Authority did not accept the Applicant’s claim that he was stateless. The Authority considered country information and found the Applicant’s claim that he had been denied identity documents later in life to be implausible (see [14] of reasons at CB 165). The Authority found the claim was undermined by the Applicant’s own admission that his parents were able to register their births and obtain identity documentation in 2016 (see [15] of reasons at CB 165). The Authority found it implausible that the Applicant could not obtain, and had been unable to obtain, similar identity documents to those obtained by his parents (see [14] of reasons at CB 165)
The Authority accepted that the Applicant had never registered his birth or obtained a birth certificate or national identity card, but found it implausible that the Bangladeshi authorities would have refused to register the Applicant’s birth throughout the course of his life, and the Authority did not accept that the Applicant was ever refused identity documentation (see [20] at CB 168). The Authority did not accept that the Applicant was ever treated as an illegal immigrant by the Bangladeshi authorities (see [20] at CB 168).
The Authority found, as a consequence, that the Applicant was a citizen of Bangladesh. The Authority was not satisfied that the Applicant’s father was ever involved in, or a supporter of, the JI party, and found that the Applicant had no personal interest in the JI party (see [20] at CB 168), nor did the authority accept that the father had ever been harassed or threatened by the Awami League, or that members of the Awami League were searching for, or continuing to search for, the Applicant. The Authority did accept that the Applicant had departed Bangladesh illegally without a passport (see [23] of reasons at CB 169).
Based on those findings, the Authority was not satisfied that the Applicant would face a real chance of harm from the Awami League, the Bangladeshi police, or any other party, as an imputed supporter of JI (see [21] of reasons at CB 168). The Authority was not satisfied that the applicant would face harm by reason of his alleged statelessness, or as alleged, of his claiming not to be a Bangladeshi national (see [22] of reasons at CB 168). The Authority was also not satisfied that the Applicant would face a real chance of being denied identity documentation, or of suffering any harm on the basis of not obtaining identity documentation, prior to his departure from Bangladesh (see [22] of reasons at CB 168).
Finally, the Authority was not satisfied that there was a real chance that the Applicant would be arrested, detained or in any way harmed because he had departed Bangladesh illegally, or because he sought asylum in Australia (see [23] of reasons at CB 169). 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. For the same reasons, the Authority was also not satisfied that the Applicant met the requirements in section 36(2)(aa) of the Act.
There were 10 grounds of review relied upon by the Applicant. Grounds 1-9 inclusive constituted un-particularised factual assertions which, when considered, would only give rise to the Court undertaking an impermissible merits review, something which it cannot do. The claims in that regard are without particularisation, and constitute a vitiating factor by reason of that alone. However, the First Respondent has treated ground number 10 as having some validity in terms of its drafting, notwithstanding that it seeks review on the ground that “relevant information not considered”.
In that regard, however, it can be seen from a reading of the detailed reasons of the Authority, that the Authority did consider the Applicant’s claims by reference to the relevant legislative criteria, as well as by reference to the alleged evidence on which the claims were made by the Applicant. The Authority made appropriate findings of fact that were open to it for the reasons stated by it. The Authority found that the Applicant did not meet the definition of refugee under the Act, and that he did not satisfy any of the protection criteria under the Act.
It was not a case where no rational or logical decision-maker could not have arrived at the same decision based on the evidence (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]), 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]).
The Authority complied with its procedural fairness obligations as set out in division 3 of part 7AA of the Act, which is an exhaustive statement of the natural justice hearing rule in relation to reviews undertaken by the Authority. There is no merit to the application for review based on any of the grounds as contained in the application. The application for review is therefore dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 11 December 2018
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