Aqa19 v Minister for Immigration

[2019] FCCA 3002

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQA19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3002

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.36, 46A, 473CB, 473DC, 473DD

Cases cited:

AQU17 v Minister for Immigration [2018] FCAFC 111
NAHI v Minister for Immigration [2004] FCAFC 10
Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481

Applicant: AQA19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 361 of 2019

Judgment of: Judge Driver

Hearing date: 21 October 2019

Delivered at: Sydney

Delivered on: 21 October 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Dennis of Minter Ellison

INTERLOCUTORY ORDERS

1. The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

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 rule 44.15(1) and 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 361 of 2019

AQA19

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 7 February 2019.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed on 14 October 2019. 

2. The applicant is a citizen of Bangladesh, who arrived in Australia on 5 June 2013 and is an unauthorised maritime arrival. The Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa. The applicant subsequently made an application for a Safe Haven Enterprise Visa (SHEV) on 6 September 2016.[1]

   [1] Court Book (CB) 25

3. On 20 July 2018, the delegate refused to grant the applicant a SHEV. The delegate's decision was a “fast track reviewable decision” and was referred by the Minister to the Authority for review.[2]  On 7 February 2019, the Authority affirmed the decision under review.[3]

   [2] CB 269

   [3] CB 303

Applicant’s claims

1. The applicant claimed to fear harm at the hands of the Awami League on account of his and his relatives’ involvement with the Bangladesh Nationalist Party (BNP). In particular, the applicant claimed to have been involved in the student wing of the BNP. The applicant claimed he had relatives who were targeted by the BNP including his uncle who was the victim of extortion and murder. After his uncle was killed, the applicant went into hiding, however, the Awami League continued to look for him. The applicant was also active with the BNP in Australia.

Authority decision

1. The Authority found the applicant would not face harm having regard to its adverse credibility findings, his profile and country information. The Authority identified that information provided by the applicant at the arrival interview contradicted his later claims.[4] The Authority identified deficiencies in the applicant's evidence and did not accept his uncle was murdered or the victim of extortion.[5] The Authority also did not accept the applicant subsequently went into hiding.[6] The Authority found the psychologist's report did not overcome its concerns with the applicant's evidence.[7]

   [4] CB 306-307: [11]–[13]

   [5] CB 307-308: [13], [15]–[16], [18]

   [6] CB 308: [18]

   [7] CB 308: [17]

2. While the Authority accepted the applicant and his family were involved with the BNP, the Authority found he embellished his claims.[8] In making that finding, the Authority discussed the applicant's evidence about his family's involvement with the BNP, his corroborative evidence and country information.[9]  The Authority found that when the applicant departed Bangladesh the Awami League were not looking for him.[10] The Authority accepted the applicant was involved with the BNP in Australia but found he was not a high profile member.[11]

   [8] CB 307, 309: [14], [19]

   [9] CB 309-312: [20]–[31]

   [10] CB 312: [32]

   [11] CB 312-313: [33]–[35]

3. Having regard to country information, the Authority found the applicant would not face harm on account of his illegal departure.[12] The Authority found the Awami League were not looking for the applicant and, while he and his family were BNP supporters, he would not face harm for this reason.[13]

   [12] CB 315: [45]

   [13] CB 316: [48]–[49]

4. For these reasons, the Authority was not satisfied that the applicant met the refugee criterion under s.36(2)(a) of the Migration Act.[14] For the same reasons, the Authority found that the applicant failed to satisfy the complementary protection criterion under s.36(2)(aa) of the Migration Act.[15]

   [14] CB 316: [51]

   [15] CB 317: [54]–[56]

The present proceedings

1. These proceedings began with a show cause application filed on 20 February 2019.  The applicant continues to rely upon that application.  He also relies upon an affidavit filed with it which I received as a submission.  I have before me as evidence the court book filed on 9 May 2019.  The applicant appears to have received some assistance in formulating the grounds in his application.  Unfortunately, those grounds are a farrago of propositions with variable connection to the Authority decision and with variable connections between the principal propositions and the supposed particulars supporting them.

2. I invited oral submissions from the applicant this morning.  His concerns go to the merits of the Authority decision which are beyond the scope of today’s proceeding.  He noted that the Authority made adverse credibility findings and said, in effect, that if he was not believed, there was nothing he could do.  He maintains that it is unsafe for him to return to Bangladesh.  To the extent that the applicant is concerned about the general process before the Authority, that is a consequence of the statutory regime under which the Authority operates.

3. The applicant complains that he was not invited to a hearing, but there is nothing in the material before me to support a proposition that it was unreasonable for the Authority not to invite the applicant to a hearing.  To the extent that the applicant asserts that the Authority should have made enquiries beyond the material provided to it, there is nothing to support that proposition.  The applicant appears to have some concern that his case was referred to the Authority at all, but that referral was required by the legislation.

4. The applicant took up the opportunity of providing a submission to the Authority together with new information in the form of country information. There is no doubt that that country information was new in the sense defined by the Migration Act. Neither is there any indication that the Authority may have fallen into error in dealing with that new information.

5. The applicant also raises a purported issue concerning interpretation, but it is not supported by any evidence of an interpretation issue at an earlier stage.  The applicant expresses concern about reliance placed on what he said at an arrivals interview but, as noted in the Minister’s oral submissions, what was said by the Authority at [11]-[13] of its reasons needs to be seen in the broader context of its decision and reasons.

6. Finally, the applicant refers to the Authority’s complementary protection assessment and suggests that this was inadequate.  The assessment did draw on anterior factual findings, but I see no error in the Authority’s approach.  In other respects, I agree with the Minister’s submissions concerning the judicial review application.   

7. The Authority was not under any duty to “get, request or accept, any new information”, nor exercise its procedural discretion to invite the applicant to provide further documents or information at an interview or otherwise.[16]  In the circumstances of this case, it would not be open to the Court to find the Authority’s approach to its discretionary powers was unreasonable.[17]

   [16] subsections 473DC(2) and 473DC(3) of the Migration Act

   [17] Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481 at [71] per Gageler, Nettle and Keane JJ

8. The Authority had regard to the review material provided by the Secretary under s.473CB of the Migration Act.[18] On 16 August 2018 and 4 January 2019, the Authority received “new information” containing country information and argument. The Authority found there were no “exceptional circumstances” to justify considering the new information.[19] The Authority plainly understood the cumulative requirements of s.473DD of the Migration Act and did not adopt an “inappropriately narrow understanding” of the phrase “exceptional circumstances”.[20]

   [18] CB 304: [3]

   [19] CB 304-305: [5], [8]

   [20] Plaintiff M174/2016 at [31]; AQU17 v Minister for Immigration [2018] FCAFC 111 at [16]–[17] per McKerracher, Murphy and Davies JJ

9. Otherwise, the Authority made findings that were open to it. The Court cannot review the merits of the Authority's decision. Further, the choice and the assessment of the weight of country information is a matter for the Authority.[21]

   [21] NAHI v Minister for Immigration [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ

10. The applicant is unable to demonstrate 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).

11. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant indicated he may need to pay over time by instalments, but he did not oppose the making of a costs order.

12. I will order that 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 rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 November 2019