ANA19 v Minister for Home Affairs
[2019] FCCA 1747
•25 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANA19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1747 |
| Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – principles for an extension of time – insufficient merit in proposed grounds of review – extension of time application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.473DD, 477 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 CXB16 v Minister for Home Affairs [2019] FCA 779 DAK16 v Minister for Immigration & Border Protection [2019] FCA 68 |
| Applicant: | ANA19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 52 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 24 June 2019 |
| Date of Last Submission: | 24 June 2019 |
| Delivered at: | Perth |
| Orders Pronounced: | 24 June 2019 |
| Delivered on: | 25 June 2019 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the First Respondent: | Ms A Ladhams |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
Formal written reasons for judgment be published from Chambers at a later date.
The applicant pay the first respondent’s costs fixed in the sum of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 52 of 2019
| ANA19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 24 June 2019, this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court.
Having heard the parties, the Court ordered that:
1. The application for an order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
2. Formal written reasons for judgment be published from Chambers at a later date.
3. The applicant pay the first respondent’s costs fixed in the sum of $3,737.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 24 June 2019.
Background
By application filed in this Court on 12 February 2019, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 11 December 2018.
The IAA affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) to refuse to grant a Safe Haven Enterprise visa (the “visa”).
The applicant now seeks judicial review of the IAA’s decision.
The applicant has lodged his application outside of the 35 day time limit prescribed in s.477(1) of the Act.
In order for the Court to consider the application, the applicant must first satisfy the Court it is in the interests of the administration of justice for him to be granted an extension of time: s.477(2) of the Act. The Minister submits that the application for an extension of time should be refused with costs. The Minister argues that the delay is significant and that the proposed grounds of review have no meaningful prospects of success.
The applicant appeared before this Court without legal representation. He was assisted by an interpreter in the Bengali language.
The Court has before it the application filed by the applicant and a supporting affidavit, a Court Book (“CB”) numbering 153 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 30 May 2019.
For the reasons that follow, the Court is not satisfied that the extension of time requested should be granted.
The applicant is a Bangladeshi citizen who arrived in Australia as an unauthorised maritime arrival on 11 April 2013. On 20 June 2017, the applicant applied for the visa.
In his protection visa application, the applicant advanced a number of claims for protection. These were accurately summarised by the IAA at [4] as follows:
•The applicant is from Boktermura village in Brahmanbaria, Chittagong.
•The Awami League (AL) wanted the applicant and his brother to join their party. AL members would watch and come to his house, and telephone. They would ask where the applicant was and threaten his parents that he would be killed if he did not join.
•The applicant was afraid that if he joined the AL, he would be killed, as there were constant tensions between the AL and the opposing Bangladesh National Party (BNP), and he was afraid he would be involved in conflict or violence.
•The applicant was also threatened to join the BNP.
•Because of the threats, the applicant often spent time away from home and lived at work. The applicant’s brother was also threatened, and left Bangladesh for Malaysia and has remained there.
•The AL leaders told the police the applicant had not been attending meetings, and the police started coming to the house every two weeks, asking the applicant’s mother where he was and saying he had to go to the AL meetings or would be in danger. If the applicant was home, he would hide when he saw them coming.
•The applicant feared not joining the AL, because they killed those who did not join and bodies were frequently found around his village. He believes he will be killed if he returns because he did not join and fled to Australia. The AL is now in government in Bangladesh and the applicant fears there is now a greater risk as they can do what they like without repercussion.
•The applicant cannot rely on the government for protection because the AL and police are connected and the police are corrupt and only help those who have the means to bribe them. The risk of harm to the applicant extends throughout the country, as he would be found and shot by the AL or police.
The applicant attended an interview before the delegate on 23 May 2018.
On 4 July 2018, the delegate refused to grant the applicant the visa.
By virtue of the applicant being an “unauthorised maritime arrival” his application was referred to the IAA for review. The applicant provided no further materials to the IAA in support of his review application. He was unrepresented throughout the visa application process.
On 11 December 2018, the IAA affirmed the decision not to grant the applicant the visa.
The IAA’s Decision
The IAA Decision appears at Court Book pages 139-149. The Court notes the summary of that decision provided at [12]-[14] in the Minister’s submissions. This is an accurate summary of the IAA’s decision and was not disputed before this Court. The Court adopts that summary as its own. It provides, relevantly, as follows.
The IAA considered the applicant’s claims and evidence and made the following findings and statements:
a)while the applicant claimed at his interview with the delegate that part of the pressure he faced to join the Awami League (“AL”) involved the destruction of his property, he provided no details of this and did not mention it elsewhere. The IAA therefore found it difficult to accept this in fact occurred. The applicant also confirmed that he had not been physically harmed (CB 141-142 at [9]);
b)the IAA considered it implausible that the police could not have located the applicant if they had wanted to. Considering the absence of any harm to the applicant, the IAA found it highly doubtful that the AL were so intent on recruiting the applicant that they would send the police to demand that he attend meetings (CB 142 at [10]);
c)based on the applicant’s evidence that he spoke to his family frequently and that nobody else in his family had been approached to join either the AL or Bangladeshi National Party (“BNP”), the IAA did not accept that the applicant would be unaware if other family members had been facing pressure. The IAA found it difficult to reconcile the AL’s apparent lack of interest in the applicant’s family with their warnings that the applicant would be hunted if he returned (CB 142 at [11]);
d)the IAA noted country information which supported the applicant’s claims that the AL conducted drives to recruit members and stated that it was willing to accept that the applicant was approached on a number of occasions to join the AL and BNP. However, the IAA was not satisfied on the evidence that those groups had a particular interest in the applicant beyond their desire to recruit young men in his area. The IAA considered it implausible that the groups retained any interest in the applicant following his departure, or that his family warned him he would be ‘hunted’ considering what appeared to be an absence of any harm to his siblings who remained in Bangladesh (CB 142 at [12]);
e)the IAA did not accept that the AL, BNP or police had any ongoing interest in the applicant because of his past refusal to join the parties or because he left for Australia (CB 142 at [12]). The IAA accepted that it was possible that if the applicant returned to Bangladesh, he would again be approached to join political parties and that he would refuse to do so. However, the IAA found the chance of this entailing or leading to any harm to the applicant was remote (CB 142 at [12]);
f)based on the applicant’s evidence, the IAA did not accept that the applicant would have any involvement with politics and considered the chance of him being caught up in political violence to be no more than remote. The IAA was not satisfied that there was a real chance of the applicant being harmed in the reasonably foreseeable future for reasons of his real or imputed political opinion or otherwise in connection with political violence in Bangladesh (CB 143 at [14]-[15]);
g)due to inconsistencies in the applicant’s statement and at his interview with the delegate about his employment history, the IAA was not satisfied that there was a real chance of the applicant experiencing economic hardship to an extent that would amount to serious harm (CB 143 at [16]); and
h)Whilst the Department of Foreign Affairs and Trade (“DFAT”) reports indicated that it is an offence under the law of Bangladesh to depart the country other than in accordance with the proper legal procedures, DFAT also reported that it was not aware of any cases where those provisions had been enforced. The IAA was therefore not satisfied that there was a real chance of the applicant being harmed in Bangladesh in the reasonably foreseeable future because of his illegal departure and/or claim for asylum in Australia (CB 143-144 at [17]).
The IAA concluded that the applicant did not meet the criteria in s.36(2)(a) of the Act (CB 144 at [19]).
In relation to the complementary protection criterion, having assessed the relevant statutory provisions (CB 144 at [20]-[21] and the evidence before it at CB 144-145 at [22]-[23]), the IAA determined that the applicant did not meet the criteria in s.36(2)(aa) of the Act (CB 145 at [24]).
Proceedings in this Court
As indicated, the applicant requires an extension of time in which to bring his application.
The applicant formally requested an extension of time in his application to the Court and articulated the following grounds:
4. I was first made aware that my visa had been refused by the IAA when I was contacted by the Department of Home Affairs advising my bridging visa expired.
5. I did not access my email at the time the decision from the IAA was sent to my email as I was under significant psychological stress as my aunt had a heart attack and subsequently died.
The Court notes these “grounds” also appeared at paragraphs 4 and 5 of the applicant’s affidavit. The applicant’s affidavit is otherwise irrelevant in relation to this issue.
Consideration
Extension of time request
The factors to be considered in relation to the question of the extension of time are not exhaustive. However, it is evident that in determining whether the Court will grant an extension of time, the Court will generally assess the following factors:
a)the length of delay and any prejudice;
b)whether the explanation for the delay is adequate; and
c)whether the proposed substantive application for judicial review has merit.
Overall, the Minister submitted as follows in written submissions:
a)the length of the delay in this matter is significant, being over two months past the 35 day time limit imposed by the statute;
b)the affidavit of the applicant does not satisfactorily explain the delay of 64 days. No independent or documentary evidence is provided in relation to the applicant’s aunt’s illness or death. Nor is any evidence provided in relation to the claimed psychological impact on the applicant;
c)the Minister does not claim that he will face any substantive prejudice as a result of the delay; and
d)on a ‘reasonably impressionistic level’, the proposed grounds of the substantive application for judicial review are not sufficiently arguable to warrant the extension of time.
The Court assesses each of these factors below.
Delay, Explanation and Prejudice
The applicant was required to file his application by 15 January 2019. He did not do so until 12 February 2019. Contrary to the Minister’s written submissions, the application was not filed “over two months past the 35 day time limit imposed by the statute”. It was filed 64 days after the date of the decision but 28 days after the expiry of the statutory time limit. In effect, the application was filed one month late.
In oral submission before this Court, counsel for the Minister agreed that the delay was, in fact, 28 days (not 64) but maintained that the delay was still significant.
A limitation provision is the general rule; an extension provision is the exception to it: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553. While limitation periods ought not to be treated lightly, the Court finds here that delay is not “excessive”.
Hence, the length of the delay does not weigh against an extension of time.
The Court asked the applicant to explain his delay. He advise the Court he could not open his e-mail as he forgot the password (inferably where the IAA decision was sent to). When asked about the stress he said he was under as a result of matters concerning his aunt, the applicant said that this also happened.
In SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 it was observed that the failure to provide an adequate explanation for the delay may, of itself, provide sufficient reason for the Court not to make an order extending time. The Court accepts that the explanation for the delay is less than satisfactory. However, in the circumstances of this matter, the Court will extend the benefit to the applicant and attach no weight to this factor.
The Minister accepts that he will not be prejudiced.
This also weighs in favour of granting the extension of time.
The Merits of the Substantive Application
The then leaves the Court to determine whether the substantive application has merit.
The grounds of review in the applicant’s substantive application provide:
I believe incorrect country information was used in the review of my case.
2. I believe all relevant information was not considered in the review of my case.
3. I believe a judicial error was made in the review of my case
The applicant was afforded an opportunity by a Registrar of this Court (in orders dated 6 June 2019) to file an amended application, any affidavits and a written outline of submissions. No materials were filed by the applicant.
The Court notes the remarks of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate in a protection visa hearing for an unrepresented applicant to be given an opportunity to explain orally the matters that he or she believes give rise to any grounds of review.
To assist the applicant, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant what the Court cannot do. It was explained that this Court cannot undertake what is referred to as “merits review” and cannot grant him the visa he seeks. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The applicant was asked to explain to the Court what he believes the IAA “did wrong”. Unfortunately, the applicant was not able to provide any information that assisted him in relation to the issue of jurisdictional error. He simply stated that he wished to rely on the contents of his judicial review application and that he would be greatly assisted if he were given the protection visa he seeks.
Ground 1
I believe incorrect country information was used in the review of my case.
In relation to ground 1, the Minister submitted as follows in written submissions:
22.The applicant asserts that the IAA has taken into account incorrect country information. However, the country information taken into account by the IAA was the same country information taken into account by the delegate. The applicant did not purport to provide any alternative country information to either the delegate or the IAA.
23.In any event, the choice and interpretation of country information was a factual matter for the IAA: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13].
The Court agrees with the Minister in this regard. The Court notes that at no point did the applicant provide any country information. Nor did he dispute the country information relied on by the delegate.
The applicant was invited to provide evidence in support of his claims by the delegate and did not do so. The IAA also invited the applicant to provide information, albeit noting that such information would be required to meet the criterion set out in s.473DD of the Act. Nothing was provided.
The IAA also invited the applicant to provide written submissions. Again, nothing was provided. If the applicant had wished to dispute the correctness of the country information before the IAA, he could have done so at that time.
The applicant had, at the very least, an opportunity to provide what he considered to be “correct country information”.
In any event, it is well established that the weight afforded to country information, and the question of accuracy of the country information, is a matter for the decision maker: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]; DAK16 v Minister for Immigration & Border Protection [2019] FCA 68 at [27]; CRG16 v Minister for Home Affairs [2019] FCA 374 at [56].
Were this Court to forensically review the IAA’s use of the country information before it, it would be engaging in impermissible merits review: DQA17 v Minister for Immigration & Anor [2018] FCCA 2418; EAT17 v Minister for Immigration & Anor [2018] FCCA 3036.
There is no merit in ground 1 as articulated.
Ground 2
I believe all relevant information was not considered in the review of my case.
In relation to ground 2, the Minister submitted:
26.The Minister acknowledges that the IAA is required to consider claims that are the subject of clearly articulated argument, relying on established facts, or which clearly emerge from the materials before it: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18].
27.However, in the present case, the Minister submits that the assertion by the applicant that the IAA has failed to consider all relevant information is entirely without merit. The IAA undertook a detailed analysis of the applicant’s claims in the context of the current situation in Bangladesh and the relevant risks to the applicant. It also referred to and considered various country information and reports. The findings that the IAA made were open to it on the evidence before it, and there are no claims or material evidence that the IAA did not take into account.
Absent particulars it is again difficult for the Court to identify what “relevant information” the IAA “failed to consider”. Unfortunately, as noted above, the applicant was unable to clarify any concerns he has in this regard.
On the face of the decision, the Court notes that:
a)the IAA provided a detailed summary of the applicant’s claims;
b)the IAA noted the documents that the applicant had provided with his visa application (namely the drivers licence, a nationality certificate and his birth certificate);
c)the IAA listened to the evidence the applicant provided at the interview with the delegate;
d)the country information the IAA took into account reflected the situation in Bangladesh and matters that were linked to the applicant’s claims; and
e)the IAA accurately summarised, and referred to, the correct legislative provisions relevant to a protection visa of this sort and in relation to a “fast track” applicant.
The Court is satisfied that the IAA carefully considered, analysed, engaged with and evaluated all of these matters in forming conclusions concerning the applicant’s claims and whether he met the criterion of the visa.
Further, the findings and conclusions the IAA came to cannot be said to be unreasonable or illogical.
Ground 2 has no reasonable prospects of success.
Ground 3
I believe a judicial error was made in the review of my case
In CXB16 v Minister for Home Affairs [2019] FCA 779 at [12], Raniagh J stated:
The grounds set out in the appellant’s notice of appeal are bare assertions of error by the Tribunal. In the absence of particularisation of the relevant considerations not taken into account, the procedural prerequisites not followed, the irrelevant facts, the issues not dealt with and the error concerning s 65(1)(a)(ii) of the Act, the appeal cannot succeed
The Court forms the same view in respect of this ground of review. A bare assertion of error cannot establish error.
Nonetheless, the Court has analysed the IAA decision in an effort to identify if there is any reasonable prospect of an error. It is not satisfied that any error appears here.
The Court notes the Minister’s submissions as follows:
29.The Minister interprets ground 3 as a broad assertion of jurisdictional error. In addition to the submissions set out above in relation to grounds 1 and 2, the Minister submits that there is no jurisdictional error in the present case for the following reasons:
29.1.In conducting its review, the IAA has correctly identified and applied the relevant law. In particular, the IAA has implicitly recognised that its role is to engage in a de novo consideration of the merits and to consider for itself whether the applicant meets the criteria for a protection visa: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16 at [17]. In the present case, the IAA has correctly identified ss 36(2)(a) and 36(2)(aa) of the Act as relevant criteria and has found that the applicant does not meet these criteria.
29.2.There is no evidence or other consideration that the IAA has taken into account which is irrelevant to the applicant’s claims.
29.3.The findings made by the IAA were clearly open to it on the material before it. There is nothing illogical or irrational in the IAA’s reasons, in the sense described in Minister for Immigration and Citizenship v SZMDS (2013) 240 CLR 611; [2010] HCA 16 at [131], [135].
29.4.The IAA has complied with the applicable statutory procedures set out in Division 3 of Part 7AA of the Act. This Division, along with two other provisions that have no application in the present case, comprises an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA and operates to the exclusion of the common law principles of the natural justice hearing rule: see s 473DA(1); DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [62]; BSQ16 v Minister for Immigration and Border Protection [2018] FCA 469 at [32]. The IAA has conducted its review ‘on the papers’ by considering the information provided by the Secretary under s 473CB, without obtaining new information and without inviting the applicant to attend an interview. This is the usual position set out by s 473DB(1). The IAA did not obtain any new information, and the applicant did not seek to provide any new information to the IAA. Therefore ss 473DD, 473DE and 473DF have no application in this case.
The Court again agrees with these submissions, noting, in particular, that:
a)the IAA complied with the obligations of procedural fairness under Division 3 Part 7AA of the Act as they relate to a “fast track” application of this sort;
b)the IAA was not required to exercise any discretion of obtain more information. Nor did the need to consider exercising a discretion arise in the circumstances of this case; and
c)each of the findings made by the IAA were well reasoned and open to be made on the basis of the materials before the IAA.
The Court repeats the matters it referred to above in relation to grounds 1 and 2. Overall, the IAA took into account all relevant considerations. Nothing irrelevant was considered. The IAA also undertook the statutory task it was required to in applying the correct legislative provisions. The findings made were open to it on the evidence and cannot be seen to be irrational, illogical or unreasonable.
Ground 3 also lacks merit.
Conclusion – merits
Having assessed the IAA’s decision in light of the applicant’s proposed grounds of review, and noting that the Court is astute to any reasonable prospect of error, the Court finds that there are no reasonable grounds for success in relation to the applicant’s substantive application.
This weighs heavily against granting the application for an extension of time.
Conclusion
Having weighed the factors to be assessed in relation to an extension of time application, the Court is not satisfied that this matter is one in which it can be said that it is in the interests of the administration of justice to exercise the discretion under s.477(2) of the Act.
Although the delay here in filing the substantive application is not excessive and the Minister is not prejudiced, the Court is not satisfied that there are any prospects of success in relation to the applicant’s substantive application.
In the circumstances, the application for an extension of time is dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 25 June 2019
0
27
2