ARW18 v Minister for Home Affairs [2019] FCA 259
ORDERS
Appellant | ||
AND: | First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(DELIVERED EX TEMPORE AND REVISED)
RANGIAH J:
1 The appellant appeals against a judgment of the Federal Circuit Court of Australia delivered on 23 July 2018. The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) which affirmed a decision of the first respondent’s delegate to refuse the appellant a Safe Haven Enterprise Visa.
2 The appellant is a citizen of Bangladesh. He arrived in Australia by boat in 2013. On 30 May 2017, the delegate refused the visa, and the decision was then referred to the Authority.
3 The appellant claimed that he feared harm from the Awami League (AL) government because he was a member and supporter of a rival party, Jamaat-e-Islami (JEI), and that he also feared harm from members of the Bangladesh Nationalist Party (BNP).
4 The appellant claimed, amongst other things, that he had become involved in verbal fights and a physical altercation with AL members. The BNP forced him to collect its members and take them to meetings. In 2004, masked men with guns came to his house and told the appellant and his brother that they were to bomb a JEI organised prayer meeting, or his wife would be abducted. The appellant and his family then fled from the village and never returned.
5 The Authority analysed the appellant’s claims at length and found them not to be credible. It rejected his claims to fear arrest by the Bangladesh government because of his JEI connections and because he had refused to work for the government. It also rejected his claim to fear harm as an illegal deportee and his claim that he would face severe economic difficulties.
6 The appellant represented himself before the primary judge. His submissions were somewhat convoluted and difficult to understand. However, the primary judge interpreted the grounds as principally challenging the merits of the Authority’s decision. The appellant’s complaint, in substance, was that the Authority did not accept his claims. He also alleged that he had been denied procedural fairness, but gave no detail of that allegation. He alleged that the Authority was biased, but again gave no detail of that allegation. The primary judge found that jurisdictional error had not been demonstrated and, accordingly, dismissed the application.
7 In his notice of appeal, the appellant sets out four grounds. These are, as the first respondent points out, template grounds that are in a substantially similar form to the grounds raised in a number of recent appeals to the Court. However, the appellant has also filed a written outline of submissions raising and addressing a number of different grounds. The submissions do not address the grounds in the notice of appeal, and those grounds seem to have been superseded by the submissions.
8 The written submissions were prepared by the appellant with assistance from a friend. The submissions are confusingly written, difficult to follow and repetitive. As best as I can understand the submissions, they raise the following issues or grounds of appeal:
(1) The appellant seeks an adjournment of the hearing for three months to allow him to engage a lawyer.
(2) The Authority failed to apply the correct test in relation to complementary protection because it failed to separate his claim to be a refugee from the test for complementary protection.
(3) The Authority denied the appellant procedural fairness by basing its opinion on assumptions and possibilities. It failed to assess the current situation in Bangladesh where thousands of opposition party workers were recently arrested by the AL government.
(4) The Authority failed to consider each integer of his claim, or failed to consider the whole of his written and oral evidence.
(5) The appellant was denied procedural fairness because he was not given enough time by the Authority to expand upon his arguments.
(6) The Authority discarded all the appellant’s oral and written submissions without giving any solid evidence of its cumulative credibility concerns in its reasons. The Authority failed to believe a number of aspects of his evidence.
(7) The Authority made its decision with a closed mind. The Authority asked irrelevant questions to discredit and confuse him.
(8) The appellant misunderstood and responded to questions posed by the Authority in a situation of nervousness and distress.
(9) The Authority should have found that his fear of harm was well-founded.
(10) The Authority did not follow the proper procedures required under the Migration Act 1958 (Cth) (the Act), the decision was affected by an error of law and there was no evidence or other material to justify the decision.
(11) The appellant’s evidence before the Authority and his interview with the Department was not properly interpreted.
9 The appellant was self-represented in the appeal. He required the assistance of an interpreter. He relied upon his written submissions and did not make any additional oral submissions in support of his grounds of appeal. I will deal with each of the issues or grounds set out above.
10 The first issue is the application for an adjournment. I was not satisfied that if I granted the adjournment there was any realistic prospect that the appellant would be able to obtain funds to engage a lawyer. The appellant made a similar submission before the primary judge on 28 July 2018 that he should be granted an adjournment to allow him to raise funds to retain a lawyer. The appellant has had some seven months since then to retain a lawyer but has not been able to do so. He asserts that he proposes to start work on a farm in Gatton within the next month and will be earning income from that job. In view of the fact that he has not obtained work in the seven months since the hearing before the Federal Circuit Court, I was not persuaded that he is likely to be able to retain a lawyer by the end of three months if the adjournment were granted. Accordingly, I refused the adjournment.
11 The second ground is not supported upon an examination of the Authority’s reasons. The reasons show that the claim for complementary protection was considered separately from the refugee claim. The Authority applied s 36(2AA) of the Act and concluded that it was not satisfied there was a real risk of significant harm. No error in that approach is apparent.
12 The third ground is unparticularised except that it alleges that the Authority failed to take into account recent country information. The reasons show that the Authority considered extensive country information demonstrating that there was political violence in Bangladesh between supporters of rival political parties. However, the Authority did not accept that the appellant was a supporter of JEI or that he had any interest in politics at all. More recent country information could not therefore have affected the decision.
13 As to the fourth ground, there is no indication in the material that an integer of the claim, or the whole of the appellant’s written and oral evidence, was not considered. The Authority provided a detailed decision. The appellant has not pointed to any claim or material evidence that was not considered.
14 The fifth ground is also unparticularised. The appellant was not interviewed by the Authority. It wrote to him on 2 June 2017 informing him that he could provide submissions within 21 days. The appellant provided submissions on 21 June 2017 and raised no complaint about the time-frame for doing so. There is no substance in this ground.
15 There is no evidence to support the premise of the sixth ground. The Authority gave detailed reasons for its credibility findings. It was not a jurisdictional error to fail to believe his evidence.
16 There is no evidence or other material to support the seventh ground.
17 The eighth ground suggests that the appellant was interviewed by the Authority. There was no such interview.
18 The ninth ground asserts that the Authority’s decision was wrong. It does not assert jurisdictional error and cannot succeed.
19 The tenth ground is entirely unparticularised. It does not demonstrate jurisdictional error.
20 The eleventh ground again suggests that there was an interview before the Authority. There was no such interview. There was an interview before a Departmental Officer, but no complaint has been made about the interpretation during that interview until now. That ground might have been met by evidence if it had been raised before the Federal Circuit Court. It should not be permitted to be raised now, particularly as it is a mere allegation unsupported by any detail or particulars.
21 For these reasons, the appeal cannot succeed. The appeal should be dismissed with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. |
Associate:
