Gne18 v Minister for Home Affairs

[2019] FCCA 2528

FEDERAL CIRCUIT COURT OF AUSTRALIA

GNE18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2528

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 36

Cases cited:

Htun v Minister for Immigration (2001) 194 ALR 244
NABE v Minister for Immigration (No.2) (2004) 144 FCR 1

Applicant: GNE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3528 of 2018

Judgment of: Judge Driver

Hearing date: 9 September 2019

Delivered at: Sydney

Delivered on: 9 September 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms D Stone of Sparke Helmore

INTERLOCUTORY ORDERS

1. Orders 10 and 11 erroneously included in the orders on the Electronic Court File are deleted and substituted with order 10 of the proposed orders on 24 January 2019.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3528 of 2018

GNE18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 26 November 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts are set out in the Minister’s outline of submissions filed on 2 September 2019. 

3. The applicant, a citizen of Bangladesh, first arrived in Australia at Christmas Island on 2 January 2013 as an unauthorised maritime arrival.[1]  On 3 March 2017, he lodged an application for a Safe Haven Enterprise Visa (SHEV).[2]

   [1] Court Book (CB) 43

   [2] CB 23-63

4. On 29 May 2018, the applicant attended an interview with the delegate.[3]  The applicant’s representative provided post-interview submissions to the delegate on 30 May 2018.[4]

   [3] CB 86, 95

   [4] CB 95-105

5. On 17 August 2018, the delegate refused to grant the SHEV.[5]  On 22 August 2018, the matter was referred to the Authority.[6]

   [5] CB 107-125

   [6] CB 127-128

6. On 26 November 2018, the Authority affirmed the decision under review.[7]

   [7] CB 131-145

Applicant’s claims

1. The applicant’s claims for protection were set out in a statutory declaration accompanying his SHEV application,[8] and can be summarised as follows:

   a)he was a Hindu of Bengali ethnicity and had “always” faced discrimination as a Hindu in Bangladesh;[9]

   b)in April 1985, the applicant and his family were attacked by Muslims while celebrating a Hindu religious festival.[10]  After this, they were forced to practise their religion at home and at the end of 1985, a local Muslim gang visited his home and warned his family to stop practising their religion or leave the area.  The family continued to practise their religion and the gang broke into their home and beat the applicant and his family;[11]

   c)following the death of his father, the applicant and his brothers inherited a large area of agricultural land.  His family suffered discrimination and harassment from local Muslims who sought to confiscate the land.  The applicant moved to Bagarhat to escape the harassment;[12]

   d)in 1986, his mother informed him that the local Muslim gang had taken over the land and were asking for his and his brother’s whereabouts so they could take the deeds to the land.[13]  The local gang eventually located the applicant in Bagarhat and threatened him when he refused to sell them his share of the land.  Due to these threats, the applicant travelled to live in Malaysia before coming to Australia;[14]

   e)he feared harm from Islamic extremist groups such as ISIS in Bangladesh due to his religion and his years living abroad in a non-Muslim country;[15] and

   f)as a returnee from overseas, he was at risk of being extorted and blackmailed on the basis of being perceived as wealthy.[16]

   [8] CB 66-69

   [9] CB 66, [9]

   [10] CB 67, [14]

   [11] CB 67, [17]

   [12] CB 67, [19]

   [13] CB 68, [22]

   [14] CB 68, [27]-[28]

   [15] CB 69, [31]

   [16] CB 69, [33]

2. At the interview before the delegate, the applicant also claimed that the Muslim gang who targeted him and his family were members of the Jamaat-e-Islami (JI) and Bangladesh National Party (BNP) and that in Bagarhat he had been employed at a tea shop for six months.[17]

   [17] CB 113

Authority decision

1. The Authority accepted that the applicant and his family had experienced past discrimination as members of the Hindu religious minority in Bangladesh, which included being caught in an attack by Muslims on the local Hindu temple in 1985.[18]  The Authority also accepted that later in 1985, the applicant’s family were assaulted in their home while practising their religion.[19]

   [18] CB 137, [24]

   [19] CB 137, [24]

2. The Authority accepted that the applicant and his parents relocated to the Bagarhat district after the loss of the family’s land.  The Authority did not accept that after leaving his home village as a child, the applicant spent time on the streets, noting that this was inconsistent with evidence that the applicant had completed a tertiary level education with the financial support of his parents.[20]  Further, it did not accept that the loss of the family’s assets threatened their capacity to subsist.[21]

   [20] CB 137, [25]

   [21] CB 137, [26]

3. The Authority rejected the applicant’s claim that the same Muslim gang who had confiscated his family’s assets 22 years earlier, had subsequently located the adult applicant, living hundreds of kilometres from his home village and threatened him to provide the deeds to the land.  The Authority considered this claim to be implausible given the passage of time, the distance from his home village, and in light of country information that the restitution of illegally appropriated land was difficult for minorities to enforce.  Moreover, the Authority considered it highly unlikely that the same gang would bother to seek out the rightful owner of the land after two decades of use without documentation.  In light of this finding, the Authority did not accept the submission made on behalf of the applicant that the same gang would perceive the applicant as a threat if he were to return to Bangladesh and was not satisfied that there was a real chance the applicant would suffer harm for this reason.[22]

   [22] CB 137-138, [27]

4. The Authority did not accept the applicant would be unable to practise his Hinduism in Bangladesh, having regard to the applicant’s evidence that, apart from the incidents in 1985, he had been able to observe his religion without difficulty for the following 22 years.[23]  The Authority accepted that the applicant had a subjective fear of harm in Bangladesh because of his minority religious status and past experiences.  However, having regard to country information on the nature and reduced frequency of recent incidences involving Hindus, the large Hindu population in Bangladesh and given that the applicant’s wife and child were living in the midst of a Christian community, the Authority was not satisfied that the level of risk of violence from Islamic extremists rose to a real chance.[24]

   [23] CB 138, [29]

   [24] CB 138-139, [30]-[31]

5. The Authority accepted that if the applicant were to return to Bangladesh, there was a real chance he might suffer discrimination in employment, as he had done in the past.  However, the Authority did not accept that any discrimination he might face in employment by reason of his religion would preclude him from obtaining employment, such that it would amount to serious harm or threaten his capacity to subsist.  The Authority was not satisfied the applicant would suffer serious harm on the basis of his religion if he were to return to Bangladesh.[25]

   [25] CB 139, [32]

6. The Authority accepted that the applicant had departed Bangladesh legally and that if he returned, it might be suspected or known that he had spent a lengthy period overseas.  However, the Authority found that other than the applicant’s own assertion, the evidence before it did not suggest that returnees were necessarily perceived as wealthy and extorted and it did not accept he would be extorted upon return.  On the basis of country information that failed asylum seekers were unlikely to face adverse attention on return to Bangladesh, the Authority was not satisfied there was a real chance the applicant would suffer harm as a returnee from overseas.[26]

   [26] CB 140, [34]

7. The Authority concluded the applicant did not meet the requirements of the definition of refugee in s.5H(1) or the criterion in s.36(2)(a) of the Migration Act 1958 (Cth).[27]

   [27] CB 140, [35]

8. With respect to the complementary protection criterion, the Authority found there was a real chance the applicant might suffer some discrimination in employment because of his religion but that this did not constitute significant harm.[28] The Authority otherwise referred to its anterior findings and found that the applicant did not face a real risk of significant harm on any of the other bases claimed, and concluded that the applicant did not meet the criterion in s.36(2)(aa). It therefore affirmed the decision under review.[29]

   [28] CB 140, [38]

   [29] CB 141, [39]-[40]

The present proceedings

1. These proceedings began with a show case application filed on 14 December of 2018.  The applicant continues to rely upon that application.  The grounds in it are:

   1.The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

   2.The [T]ribunal failed to assess the harm that I may face based on my race and ethnicity.

2. The application was supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 30 January 2019.

3. Only the Minister filed pre-hearing written submissions in this case.  I invited oral submissions from the applicant.  Those submissions were exclusively directed at his reasons for claiming protection and the merits of the decision of the Authority.  As I explained to the applicant, those merits are beyond the scope of this proceeding.

4. The applicant was not able to advance any legal argument about either the decision of the Authority or the process that it followed.  In my view, no arguable case of jurisdictional error is available to the applicant in this matter.

5. The Minister’s submissions deal with the grounds of review advanced.  I agree with those submissions.

Ground 1

1. By Ground 1 the applicant contends that the Authority failed to consider “all aspects” of his claims. The applicant has not provided any particulars to identify which claims the Authority has allegedly failed to consider.  In any event, this contention must fail.  The Authority set out the claims made by the applicant[30] and considered each of them in turn.  The applicant’s contention made by this ground represents, in effect, no more than disagreement with the Authority’s findings and fails to raise any arguable case for the relief claimed.

   [30] at CB 132-133, [5]

Ground 2

1. Ground 2 is a contention that the Authority failed to assess the harm the applicant might face on the basis of his race and ethnicity.  The applicant has not identified the claims he says he made regarding his “race” and “ethnicity” which the Authority failed to consider.

2. The Authority is required to assess all claims actually made by an applicant and those which arise squarely on the material before the Authority.[31]  The Authority accepted that the applicant was of Bengali ethnicity, as claimed.[32]  However, as is apparent from the material before this Court, no claim was expressly made by the applicant to fear any harm on this basis, nor did such a claim arise on the material before the Authority.  Rather, the material before the Authority indicated that the Muslim majority in Bangladesh were of Bengali ethnicity.[33]  This ground too fails to raise any arguable case for the relief claimed by the applicant.

   [31] NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at [58]; Htun v Minister for Immigration (2001) 194 ALR 244 at [13].

   [32] CB 133, [8]

   [33] CB 136, [22]

Conclusion

1. I conclude that the applicant is unable to establish an arguable case of jurisdictional error by the Authority. I will, therefore, dismiss the application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant doubted his capacity to pay but, as has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making a costs order.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       10 September 2019