ACD18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 697

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ACD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 697

File number(s):	SYG 54 of 2018
Judgment of:	JUDGE LAING
Date of judgment:	11 August 2023
Catchwords:	MIGRATION – review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA correctly applied the criteria in s 473DD of the Migration Act 1958 (Cth) – whether the applicant was relevantly denied procedural fairness – whether the IAA’s reasoning was sufficient and logically open to the IAA – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 473DD
Cases cited:	AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494
Division:	Division 2 General Federal Law
Number of paragraphs:	32
Date of hearing:	2 August 2023
Place:	Sydney
Appearing for the Applicant:	In person
Solicitor for the Respondents:	Ms A Zinn of Mills Oakley

ORDERS

SYG 54 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ACD18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	11 August 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay first respondent’s costs fixed in the amount of $5,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. Before the Court is an application for judicial review of a decision made by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XD) (Subclass 785) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of Bangladesh who arrived in Australia in 2013 as an unauthorised maritime arrival.

3. On 24 August 2016, the applicant applied for a protection visa.

4. The Delegate refused the application on 11 May 2017. The matter was subsequently referred to the IAA for review.

5. On 15 December 2017, the IAA affirmed the Delegate’s decision.

   THE IAA’S DECISION

6. The IAA observed that it had received material that had been provided after the Delegate’s decision. In relation to this, the IAA reasoned at [3] of its decision as follows:

   3.On 5 June 2017 the applicant’s representative provided a submission to the IAA and insofar as this engages in argument with the delegate’s decision I have had regard to it. Additionally the submission provided some information which was not before the delegate and which amounts to new information. This includes an undated letter of reference from the applicant’s former employer in Dhaka. No reasons have been provided as to why this document could not have been provided to the delegate and the applicant has not satisfied me that s.473DD(b)(i) is met. The letter of reference may be credible personal information about the applicant’s past employment as a welder but it has no apparent relevance to the applicant’s claims to protection and the applicant has not satisfied me that it would have affected the consideration of his claims. The applicant has not satisfied me that s.473DD(b)(ii) is met. Given the that the letter has no apparent relevance to the applicant’s claims to protection, and given that I can find no other exceptional circumstances in association with this information, I am not satisfied that there are exceptional circumstances to justify considering this new information.

7. The IAA accepted that the applicant was a national of Bangladesh and that Bangladesh was the receiving country for the purposes of the review (at [7]). However, the IAA did not accept the applicant’s claims to have faced threats and/or harm from any political party in Bangladesh (at [14]). The IAA identified a number of credibility concerns with the applicant’s evidence in this regard (at [8]-[14]). Specifically:

   (a)The applicant had given evidence at interview that he was taken to a “clubhouse” during his claimed abduction in late July or early August 2012, whereas he had referred to the location as a “torture house” in his written claims. The IAA was not convinced by the applicant’s explanation that “this was just a consequence of how the interpreter who assisted him in the written claims had rendered this location” (at [10]).

   (b)At interview, the applicant stated that his sister had been able to get him released by going to the clubhouse with a number of respected elders from the community and also the local government head. However, the applicant had made no reference to such persons accompanying his sister in his written claims (at [10]).

   (c)The IAA considered it “doubtful” that men trying to forcibly recruit the applicant through violence would have been willing to release the applicant to his sister upon being informed that his mother had suffered a stroke after learning of his abduction (at [11]).

   (d)At interview, the applicant initially claimed that the police had accused him of “illegally withdrawing money” when asked about his claims regarding false charges against him. However, in his written claims, the applicant had stated that he had been falsely accused of “throwing bombs” and had made no mention of being accused of “illegally withdrawing money” (at [11]).

   (e)The IAA did not accept that the applicant’s nerves or treatment for liver damage accounted for the “inconsistent and unconvincing” nature of his evidence. The IAA observed that no documentary evidence had been provided to substantiate his claim to be undergoing treatment for a liver condition, and the IAA did not accept that he was affected by any medical condition of this kind at the time of his interview (at [12]). 

   (f)There was no independent reporting or country information before the IAA capable of substantiating the applicant’s claims that the Awami League, or the Bangladesh National Party or Jamaat e-Islami, had sought to compel people to join their respective parties by force. The information before the IAA did not indicate that voters were broadly at risk of politically related harm, that non-voters were targeted in this way, or that the Awami League or any other party were targeting young people in this way in 2012 or at any other time (at [13]).

   (g)Beyond claiming that he was targeted as a young person in the lead up to elections, the applicant provided no other reason why he would have been of interest to the Awami League, or why any other party would have sought to compel him to join them (at [14]).

8. Having regard to the above, the IAA concluded at [14]:

   14.… Given this, and given the unconvincing nature of the applicant’s evidence, I am not persuaded that the applicant was ever threatened, or harmed, by the Awami League or any other political party in Bangladesh for reason of refusing to join them, or in any other regard. Given this, and given that the applicant indicated at the TPV interview that he had never voted and had no interest in politics at all, I am not satisfied that the applicant would, if he were to return to Bangladesh, face a real chance of harm of any kind from the Awami League, or from the BNP or from Jamaat or any other political party, for reason of his not joining or supporting any of these parties.

9. In relation to the applicant’s claim to have departed Bangladesh without a passport, the IAA reasoned at [15] (footnote omitted):

   15.The applicant claims to have departed Bangladesh by boat without a passport. Although I have not found the applicant’s claims credible in other regards I am, given the extent to which citizens of Bangladesh engage in irregular migration, willing to accept that the applicant departed Bangladesh by boat without a passport. DFAT has observed that the Bangladesh Emigration Ordinance Act (1982) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act. However, DFAT is not aware of any cases in which the Bangladesh authorities have enforced these provisions. DFAT assesses that most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily.² Given this, I am not satisfied that the applicant would face a real chance of harm of any kind upon return to Bangladesh for reason of having departed Bangladesh unlawfully without a passport and/or for having sought asylum in Australia.

10. Based upon the above, the IAA concluded that the applicant was not a person to whom protection obligations were owed under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act). Accordingly, the IAA affirmed the Delegate’s decision (at [16]-[21]).

    PROCEEDINGS BEFORE THIS COURT

11. The applicant commenced the current proceedings through an application filed on 8 January 2018 containing the following grounds:

    1.The Immigration Assessment Authority has failed to apply the correct test pursuant to Section 473DD(b) of the Migration Act 1958.

    Particulars:

    In dealing with the Applicant's claims under Section 473DD(b) of the Migration Act 1958(Cth) the Immigration Assessment Authority explicitly failed to disaggregate the statutory formulae under 473DD(b) of the Act.

    2.The Immigration Assessment Authority denied the Applicant's procedural fairness.

12. The applicant was initially represented in these proceedings. However, prior to the hearing the Court was advised that the applicant had terminated his lawyer’s retainer. Consistently with this, the applicant filed a Notice of Address for Service indicating that he would be acting in person. At the hearing, the applicant confirmed that he intended to represent himself.

    Ground 1

13. Ground 1 contended that in dealing with the applicant's claims under s 473DD of the Act, the IAA “failed to disaggregate the statutory formulae under 473DD(b) of the Act”.

14. Section 473DD of the Act was as follows:

    MIGRATION ACT 1958 - SECT 473DD

    Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

15. The meaning of ground 1 was not entirely clear. However, it appeared to be directed towards what was stated in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 at [10]-[11] (per Kiefel CJ, Gageler, Keane and Gordon JJ) (footnotes omitted):

    10.Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

    11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a)…

16. The only “new information” that the IAA considered was before it was a reference letter from the applicant’s employer. The IAA’s reasoning in relation to that document at [3] of its decision is set out in full above.

17. I accept the Minister’s submission that the IAA’s approach was consistent with the approach required in AUS17. The IAA firstly assessed the material against each of the criteria in ss 473DD(b)(i) and (b)(ii) of the Act before considering whether or not there were exceptional circumstances for the purposes of 473DD(a) of the Act.

18. It is therefore not apparent that the IAA erred in the manner considered in AUS17, or in any other material manner, in its application of s 473DD of the Act.

19. It follows that ground 1 is unable to succeed.

    Ground 2

20. Ground 2 contended that the IAA denied the applicant procedural fairness. The ground did not particularise how this was said to have occurred.

21. As the Minister submitted, the IAA’s procedural fairness obligations were limited under Part 7AA of the Act: s 473DA. Subject to considerations of reasonableness, the IAA was under no obligation to invite the applicant to a hearing or to obtain, request, or accept new information.

22. It is not apparent from my review of the materials how the IAA could be said to have failed to have complied with any procedural fairness obligation or to have unreasonably exercised or failed to have exercised its powers under Part 7AA of the Act. The applicant did not elaborate upon this ground at the hearing when given the opportunity to do so. Instead, the applicant raised other issues in relation to the IAA’s decision. Those issues are considered below.

23. For the above reasons, ground 2 is unable to succeed.

    Matters raised at hearing

24. At the hearing, the applicant queried whether he could put before the Court evidence that was not before the IAA regarding events that had occurred after the IAA’s decision. In particular, the applicant submitted that his family had been harmed after the IAA’s decision and also that his house had been destroyed. 

25. In response, I explained the Court’s limited role in proceedings of this nature and how it differs from the role of the IAA. I explained that the Court is unable to reassess whether an applicant’s claims to protection ought to be accepted, including by reference to material that was not before the IAA. I explained that I had no power to grant the applicant a visa, no matter how much sympathy I may have for him and his family. I further explained that the question for the Court, rather, is whether the IAA’s decision was lawfully and reasonably open to it having regard to the material that was before it. It was not apparent how that question could be determined by reference to events that had occurred after the IAA’s decision.

26. The applicant stated that he understood this and identified issues that he had with the IAA’s reasoning. In particular, the applicant took issue with the IAA’s non-acceptance of his explanation regarding certain inconsistencies in his evidence. This was in circumstances where he submitted that his evidence may have been affected by issues with an interpreter and also by his nerves and his journey to Australia. The applicant submitted that he could not understand from the IAA’s decision why his account regarding his sister coming with community people to rescue him, and his explanation for the inconsistencies in his evidence, had not been accepted by the IAA.

27. The applicant’s explanations regarding these issues in his evidence were considered by the IAA at [10]-[12] of its decision:

    10. At the TPV interview the delegate asked the applicant to explain what the torture house was and how it was known that he had been taken there. The applicant said that it was the clubhouse of the Awami League men. He said that everyone in the local area knew who these people were and about their clubhouse and that these local people telephoned his sister and that some of these people then went with his sister to the clubhouse. It was put to the applicant that in his written claims he had referred to this location as a torture house, and that there seemed to be a significant difference between the implications of referring to the locations as a clubhouse rather than as a torture house. The applicant submitted that this was just a consequence of how the interpreter who assisted him in the written claims had rendered this location. I did not find this explanation convincing. Asked how his sister had been able to get him released in such circumstances the applicant said that she went to the clubhouse with a number of respected elders from the local community and also the elected local chairman (the local government head). It was put to the applicant that in his written claims he had never said anything about his sister being accompanied by such persons. He said that maybe the interpreter who assisted in the written claims had not included this information but that he had notes about this in his own file. Given that the applicant’s written claims were set down in a statutory declaration which was read back to the applicant by the interpreter before being signed by him I have not found this explanation convincing.

    11.Further, and even if the applicant’s sister had, somehow, been able to locate the applicant at the clubhouse or torture house within a matter of hours, and even if she had been attended by some local respected elders and the elected local government chairman, it seems doubtful that in such circumstances men who were trying to forcibly recruit the applicant into joining their political party through violence would have been willing to release the applicant to his sister upon being informed that the applicant’s mother had had a stroke after learning of the applicant’s abduction. At the TPV interview the applicant was asked about his claim to have had false charges brought against him by police. He said that police had stopped him and had accused him of illegally withdrawing money. The delegate put it to the applicant that in his written claims he had said that the police had falsely accused him of throwing bombs. The applicant said that they accused him of throwing bombs later when they were at the police station. Although the written claims do specify that the accusation of throwing bombs took place at the police station, he nevertheless made any mention in his written claims of having been accused of illegally withdrawing money at the moment he was stopped by police (instead he had referred to being searched and that the police threatened to shoot him if he did not get in their van) and I am not persuaded that the applicant would have neglected to mention that he was accused of illegally withdrawing money in his written claims if an incident of this kind did occur.

    12. At the conclusion of the TPV interview the applicant said that he wished to submit that there may have been discrepancies because the interpreter had been a Rohingya and had not understood him properly and that he had been at sea for a long time when he made the statement. The delegate pointed out that she had been referring to his August 2016 written claims (the applicant arrived in Australia in April 2013, some three years earlier). The applicant apologised and said that he had become confused and had thought they were talking about statements he may have made when he first arrived in Australia. At the conclusion of the interview the applicant also said that he wished to submit that he had been receiving treatment in hospital for liver damage and that his treatment and, being in an interview situation, had made him nervous and had made it difficult for him to answer questions. The applicant has provided no documentary evidence to substantiate his claim that he was receiving ongoing treatment for a liver condition, or that any past treatment had affected him in any way that would affect how he was able to perform at the TPV interview, and I do not accept that the applicant was affected by any medical condition of this kind at the time of his TPV interview. I accept that interview situations can make people nervous but I am not satisfied that nervousness on the part of the applicant can adequately account for the inconsistent and unconvincing nature of the applicant’s evidence.

1. Having considered the IAA’s reasoning carefully, I accept the Minister’s submission that it was reasonably and logically available to the IAA. The IAA was not obliged to accept the applicant’s explanation for the inconsistencies in his evidence. To the extent that the applicant claimed that these were attributable to the interpreter who assisted with his written statutory declaration, it was open to the IAA to have not accepted this in circumstances where it was indicated in the statutory declaration that it had been “read back” to the applicant at the time that it was made with the assistance of an interpreter. It was also open to the IAA to have found that the references to the location to which the applicant had claimed to have been taken as a “torture house” and “clubhouse” were inconsistent given, as was found by the IAA, the different implications that may be attributed to these respective descriptions. It was open to the IAA to have been concerned by the lack of mention in the applicant’s written statutory declaration of the people he subsequently claimed had accompanied his sister when rescuing him, given the important role that he had subsequently attributed to those people.

2. Whilst the applicant may well have been affected by his journey to Australia, I am unable to find that it was closed to the IAA not to have accepted that this may have affected his written claims that were made some years later. This was in circumstances where the applicant appears to have resiled from this explanation upon realising that the written claims with which the Delegate had been concerned were those that he had made in 2016. I accept the Minister’s submission that it was open to the IAA not to have accepted that its issues with the applicant’s evidence were able to be explained by nerves or any medical condition, in the absence of any documentary evidence substantiating that this had occurred.

3. Having regard to these matters, and having considered the materials before me carefully, I am unable to find that the IAA’s decision was logically or otherwise closed to the IAA based upon the material that was before it. Whilst another decision maker may well have reasoned differently, this is not a sufficient basis to set aside the IAA’s decision on judicial review. 

   CONCLUSION

4. For the above reasons, I am required to dismiss the application that is before the Court.

5. I will hear from the parties in relation to costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       11 August 2023