Avo19 v Minister for Immigration
[2019] FCCA 3026
•22 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVO19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3026 |
| 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) |
| Cases cited: AQU17 v Minister for Immigration [2018] FCAFC 111 |
| Applicant: | AVO19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 480 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr H Gao of Australian Government Solicitor |
INTERLOCUTORY ORDERS
The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
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 480 of 2019
| AVO19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 27 February 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts concerning the applicant’s claims for protection and the Authority decision on them are set out in the Minister’s outline of submissions filed on 15 October 2019.
The applicant is a citizen of Bangladesh who arrived in Australia on 31 January 2013 as an unauthorised maritime arrival.[1] On 8 February 2013, the applicant attended an Irregular Maritime Arrival Entry interview (entry interview), at which he claimed that he departed Bangladesh for economic reasons.[2]
[1] Relevant Documents (RD) 46
[2] RD 11, 17
On 23 March 2017, the applicant applied for a Safe Haven Enterprise Visa (SHEV) in which he made the following claims:[3]
a)he and his family were supporters of the Bangladesh Nationalist Party (BNP). He was a low level member of the BNP and he had a good relationship with the chairman of the Thana. He would listen to the grievances expressed by his fellow villagers and report them to the chairman;
b)due to his support for the BNP, he was physically assaulted by members of the Awami League on two occasions after the 2012 election. He subsequently relocated to Dhaka before departing for Australia; and
c)he departed Bangladesh illegally on a false passport.
[3] RD 63-66
On 15 November 2018, the applicant attended an interview with the delegate (SHEV interview).[4] On 21 January 2019, the delegate refused the SHEV. The delegate noted inconsistencies in the applicant’s evidence and found that his claims were not credible. The delegate accepted that the applicant’s family supported the BNP and that he would return to Bangladesh as a failed asylum seeker. However, the delegate found that the applicant would not be harmed for those reasons.[5]
[4] RD 80-81
[5] RD 88-106
On 24 January 2019, the delegate’s decision was referred to the Authority pursuant to s.473CA of the Migration Act 1958 (Cth) (Migration Act).[6] On 16 February 2019, the applicant’s representative provided further material to the Authority, including a statement by the applicant, ID documents of the applicant’s son, photos and news articles. Relevantly, the applicant claimed that his son was abducted by Awami League supporters in June 2018 and was released four months later after the applicant paid 5 Lakh taka. As a result, his family’s clothing store was closed and being sold.[7]
[6] RD 108-109
[7] RD 125-143
Authority decision
On 27 February 2019, the Authority affirmed the decision under review.[8]
[8] RD 149
New information
The Authority found that, apart from the identity card of the applicant’s son, the documents submitted by the applicant to the Authority on 16 February 2019 were “new information” within the meaning of s.473DC(1) of the Migration Act.[9]
[9] RD 150 at [3]
In relation to the applicant’s new claim that his son was abducted in June 2018, the Authority found that the claimed abduction occurred before the SHEV interview. It found that this claim was inconsistent with the applicant’s evidence given at that interview. Further, given the significance of the claim, it found it was implausible that the applicant would have failed to mention this at the SHEV interview. The Authority found that the other documents submitted by the applicant did not corroborate the claimed abduction, or the closure or sale of the shop. The Authority found that there were no exceptional circumstances to justify considering the new claims or documents.[10]
[10] RD 150 at [4]
The Authority noted the content of the news articles and found that they did not relevantly add to the country information before it. It found that there were no exceptional circumstances to justify considering them.[11]
[11] RD 151 at [5]
Finally, the Authority noted the applicant’s request for an interview. It found that the SHEV interview was over two hours long, at which the applicant was advised of the importance of providing details about his claims. It noted that the applicant did not indicate what additional information he might provide. As such, it declined to exercise its discretion to invite the applicant to provide further information at an interview.[12]
[12] RD 151 at [6]
Findings
The Authority found that the applicant was not a credible witness and that his evidence at the SHEV interview was undetailed and vague.[13] In particular, the Authority found that:
a)he gave inconsistent evidence regarding the activities he undertook for the BNP. It noted that he was unable to recall the name of the BNP candidate he supported in the 2012 election. It further noted that he was not able to identify any ideologies, policies, cultures or agendas that attracted him to the BNP. It found that his evidence regarding his involvement with the BNP and knowledge of that party was unpersuasive;[14]
b)the applicant gave inconsistent evidence regarding the alleged harm he suffered at the hands of Awami League supporters, and the length of time he spent in Dhaka after those attacks. It found that the applicant gave shifting evidence regarding his family’s current circumstances. It noted that while the applicant initially claimed that his sons were harassed by Awami League supporters, he conceded that nothing had actually happened to them;[15] and
c)the applicant’s evidence given at the entry interview undermined his claims. It found that the applicant was unable to explain the significant differences between his evidence given at the entry interview and his claims for the SHEV.[16]
[13] RD 151 at [11]
[14] RD 152-153 at [12]-[13]
[15] RD 153-154 at [14]-[16]
[16] RD 154 at [17]
For these reasons, the Authority comprehensively rejected the applicant’s claims. Nevertheless, it accepted that the applicant might vote for the BNP in elections and noted that political violence was prevalent in Bangladesh. It found that as the applicant was not politically active, there was not a real chance that he would be harmed due to political violence.[17]
[17] RD 154-155 at [18]-[21]
In light of country information, the Authority also found that the applicant would not be harmed in Bangladesh due to his illegal departure from that country or his status as a failed asylum seeker. Nor was the Authority satisfied that the applicant would be unable to subsist if he were to return to Bangladesh.[18] In those circumstances, the Authority found that the applicant did not satisfy the refugee criterion or the complementary protection criterion under s.36(2)(a) or (aa) of the Migration Act.[19]
[18] RD 155-156 at [22]-[23]
[19] RD 156-157 at [24]-[31]
The present proceedings
These proceedings began with a show cause application filed on 1 March 2019. There are 23 numbered paragraphs and some additional narrative constituting the grounds of review in the application:
1. The applicant claims that he was denied procedural fairness and natural justice when the IAA made decision on limited information -materials referred by Secretary under s 473CB of the Migration Act 1958 ( the Act).
2. Particular: The IAA totally discarded new information forwarded by his Migration Agent. The applicant claims that if he is compelled to go back to his country he will be face a significant harm. In the new information he forwarded the evidence. He claims that his son was abducted by the Awami League workers and kept him like a slave. After giving them (Awami League workers) money to the offender (Awami league worker) his son was released. His shop was closed for long and his son is scared to sit in the shop. The applicant's family is living in a fear.
3. Now applicant's clothing shop is closed and trying to sell this shop.
4. The Authority says "With exception of his son's identity card which was submitted to the Delegate, I find this material to be new information.. "
5. The Authority did not account this evidence as credible because the applicant did not disclose at first interview in November 2018.
6. The applicant claims that the Authority mistook the facts. The applicant did not had knowledge about what types of evidence needed to show that there is a danger to his life if he goes back to his country.
7. The Applicant in this new information wanted to tell the Authority that still there is a danger of his life. The applicant claims that his son's abduction shows that there is still a danger to his life.
8. The Authority did not account as a evidence for his complementary Protection claim.
9. The applicant has no knowledge of English and did not know any thing about the required evidence for claims for Protection visa The IAA did not account the applicant's inability to response in a legal way . The interpreter did not translate properly about the issues and the applicant missed this information.
10. The Applicant claims that it made a jurisdictional error when the applicant was called for Interview according to sec 424. The applicant was denied natural justice and procedural fairness.
11. Particulars: The legal representative asked fom the IAA that the applicant wants to appear before the Authority to clear inconsistency misunderstandings . But the Authority denied applicant's demand for hearing. The applicant claims he was denied natural justice and procedural fairness.
12. The applicant did not understand the attached information. The Migration Agent explained about the possibility of hearing.
13.In [attachment] the IAA wrote "we can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act . We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or Department.
14. The Authority accepts that the new information about his son's abduction is important. However, the authority did not give opportunity to explain in detail before the authority.
15. The applicant claims arrangement of Hearing is essentials of the Review system and it is applied by the Administrative Appeal Tribunal.
16. The IAA is a subsidiary body of the AAT and the applicant has a legitimate expectation from the IAA that it would follow the AAT.
17. The applicant claims that issue of not asking of a new information at an interview is itself a jurisdictional error in review process.
18. The applicant was not at all aware that the decision of the Department will go automatically to the IAA without any consent or information or signature of the applicant. Taking not consent for review of the decision is unreasonable and it may considered as a jurisdictional error.
19. Particulars: .During Departmental interview the applicant was not told or made aware that after the decision of the Department he has no review right or the IAA can make decision based on the materials supplied only by the Department to fulfill the obligation under Fast Track imposed by the First Respondent.
20. On25 January 2019, a letter (Acknowledgement of Referral) was sent to the applicant's address by the IAA ..
21. The applicant only knew about decision when he received a letter from the Department that his decision was referred to the IAA for review and in the letter it was said that if the applicant has changed the contact address, inform immediately of new contact address.
22. The letter said that the Department has made aim to complete applicant's dealing (not the application for Review) in six weeks.
23. The applicant claims that the IAA did not process that applicant's application for review in judicial manner and he was completely denied procedural fairness and natural justice.
The applicant claims that the IAA failed to assess the real risk cretario under the provision of Complementary Protection Visa Provision s36(2)(aa).
Particular: If he is compelled to go back to his country (Bangladesh) he will be killed by the supporters of the Awami League. The applicant forwarded recent evidence of Bangladeshi Parliamentary election and also informed the authority that New government is formed by the Awami league party and it is supressing the BNP party workers.
Both the IAA and the Department failed to assess the risk of significant harm according to the provisions Complementary Protection. The IAA failed to account the recent political situation in Bangladesh and made decision without giving any weight to the harassment, torture and arrest of thousands of BNP supporters in Bangaldesh.
(errors in original)
I note in passing that the grounds are quite similar to the grounds advanced in another case which I dealt with yesterday. Coincidentally, that matter also involved an applicant from Bangladesh who had made very similar claims for protection as this applicant.
The application is supported by an affidavit filed with it which I received as a submission.
I have before me as evidence the book of relevant documents filed on 3 May 2019.
I invited oral submissions from the applicant this afternoon. He was very hesitant. In response to prompting from me he said that the Authority had not made any mistake. He told me that he wishes to extend his stay in Australia. Notwithstanding my explanation that I had no power to grant or refuse the applicant a visa, he asked me to grant him a visa. It was apparent that the applicant was unable to advance any propositions either drawn from his judicial review application or the book of relevant documents.
The Minister’s submissions deal with the grounds of review advanced. I agree with those submissions.
Although it is difficult to discern with precision from the grounds in the application, the jurisdictional errors allegedly made by the Authority, it appears that the applicant is asserting that the Authority erred by:
a)failing to accept the new information that his son was abducted (new information ground): [1]-[9]
b)failing to invite the applicant to provide further evidence at an interview (s.473DC ground): [10]-[17]
c)failing to advise the applicant that the delegate’s decision would be automatically referred to the Authority (automatic referral ground): [18]-[23]
d)failing to assess the applicant’s claim of political violence against the complementary protection criterion (complementary protection ground).
New information ground
This ground does not raise any arguable case for the relief claimed for the following reasons. First, the Authority was correct in finding the applicant’s claims that his son was abducted was “new information” with the meaning of s.473DC(1) of the Migration Act because he had not raised such claim before the delegate. The applicant did not contend otherwise.[20]
[20] RD 128
Secondly, having found that the claim was “new information”, the Authority was required to assess whether it should be considered pursuant s.473DD of the Migration Act. In the present case, the Authority found that there were no exceptional circumstances to justify considering the new information. In reaching that finding, the Authority noted that the claimed abduction occurred before the SHEV interview, and that it was inconsistent with the applicant’s evidence given at that interview. It also noted the applicant did not provide any explanation as to why he failed to mention this claim earlier. Given the significance of the abduction claim, the Authority found that it was to be expected that the applicant would have mentioned this claim at the SHEV interview. It further found that the documents submitted by the applicant did not substantiate the abduction claim.[21] The Authority’s finding was open to it as it did not take an unduly narrow approach in considering whether there were exceptional circumstances to justify considering the new information. [22]
[21] RD 150 at [4]
[22] see Plaintiff M174/2016 v Minister for Immigration [2018] HCA 174 at [30]-[31]; cf BVZ16 v Minister for Immigration [2017] FCA 958 at [40], [46]-[47]
Although the Authority did not expressly refer to the matters in s.473DD(b) of the Migration Act in finding that there were no exceptional circumstances to consider the new information, it was not required to do so.[23] Further, the Court should draw an inference that the Authority was cognisant of the matters in s.473DD(b) as it found that the abduction claim was inconsistent with the applicant’s evidence given at the SHEV interview, and therefore not capable of being accepted as truthful.[24] The truthfulness of a new claim is a matter that the Authority can have regard to in assessing whether there were exceptional circumstances to consider the new information.[25]
[23] see AQU17 v Minister for Immigration [2018] FCAFC 111 at [14]
[24] cf CSR16 v Minister for Immigration [2018] FCA 474 at [40]-[41]
[25] see DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22]
Lastly, having found that there were no exceptional circumstances to justify considering the abduction claim, the Authority was prohibited from taking it into account in the conduct of its review.[26] The applicant’s contention to the contrary merely seeks impermissible merits review of the Authority’s decision.
[26] see s.473DD of the Migration Act
Insofar as this ground asserts that there were interpretation errors at the SHEV interview, there is no evidence before the Court, such as a transcript of the SHEV interview, to substantiate the applicant’s contention. For these reasons, this ground would not succeed.
Section 473DC ground
Under s.473DC(3) of the Migration Act, the Authority has a discretion, which must be exercised reasonably, to invite the applicant to provide “new information” at an interview.[27] It has been held that when an administrative decision-maker, such as the Authority, gave reasons for the exercise of its statutory discretion, the Court should consider those reasons in assessing whether that decision was legally unreasonable.[28]
[27] see eg Minister for Immigration v CRY16 [2017] FCAFC 210; Minister for Immigration v Li [2013] HCA 18
[28] see Minister for Immigration v Singh [2014] FCAFC 1 at [45]
In the present case, the Authority gave reasons for not exercising its statutory discretion under s.473DC(3). It noted the duration of the SHEV interview and the advice the applicant received at that interview. It also noted that the applicant had not indicated the nature of additional information that he would provide. Further, contrary to the applicant’s contention, the Authority did not find the applicant’s new claim that his son was abducted to be credible as it was inconsistent with his evidence given at the SHEV interview. In those circumstances, it was not legally unreasonable for the Authority not to exercise its discretion under s.473DC(3) of the Migration Act.[29]
[29] see Minister for Immigration v SZMDS [2010] HCA 16 at [130]-[131]
To the extent that the applicant is contending that he should be invited to a “hearing” before the Authority because it forms part of the Administrative Appeals Tribunal, such contention does not grapple with the specific legislative regime under which the Authority operates. The Authority’s statutory obligation in the conduct of its review is prescribed by Part 7AA of the Migration Act. The statutory language in ss.473DB(1)(a) and 473DC(3) makes clear that a review applicant has no right to an oral hearing. As such, this ground does not raise any arguable case for the relief claimed.
Automatic referral ground
It is unclear what the applicant’s contention is under this ground as it appears to take issue with the Authority review process.
To the extent that this ground can be understood as asserting that the Authority did not have power to review the delegate’s decision, it cannot succeed. The applicant arrived at Christmas Island by boat on 31 January 2013.[30] By operation of s.5AA(1) of the Migration Act, the applicant is an “unauthorised maritime arrival”. Further, the applicant is a “fast track applicant” as defined under s.5 of the Migration Act, as he arrived in Australia on or after 13 August 2012, was invited to apply for the SHEV by the Minister, and had subsequently lodged a valid SHEV application.[31] As the delegate refused the SHEV, the delegate’s decision was a “fast track decision” and a “fast track reviewable decision” as defined under ss.5 and 473BB the Migration Act. Consequently, the Authority has jurisdiction to review the delegate’s decision.
[30] RD 46
[31] RD 18
Insofar as the applicant contends that he did not consent to the Authority reviewing the delegate’s decision, it is misconceived. By operation of s.473CA of the Migration Act, the Minister must refer the delegate’s decision to the Authority irrespective of the applicant’s consent. In any event, the letter notifying the applicant of the delegate’s decision also informed him that the decision would be referred to the Authority for review.[32] In those circumstances, this ground does not raise any arguable case for the relief claimed.
[32] RD 89-90
Complementary protection ground
This ground cannot succeed because the Authority expressly found that there was not a real chance that the applicant would be harmed in relation to his political views or in political violence in Bangladesh.[33] The Authority noted that the assessment of “real chance” and “real risk” involved the same standard, and relied on its previous findings and concluded that there was not a real risk the applicant would be significantly harmed.[34] There was no error in the Authority’s approach in that regard.[35]
[33] RD 155-156 at [21]-[24]
[34] RD 157 at [28]-[29]
[35] see MZYXS v Minister for Immigration [2013] FCA 614 at [31]
To the extent that this ground can be understood as asserting that the Authority erred in not considering the country information submitted by the applicant, it should be rejected. The Authority found that there were no exceptional circumstances to consider the country information submitted by the applicant because relevantly, it did not add to the country information that was already before the Authority.[36] That finding was open to the Authority as it accepted that there was political violence in Bangladesh at [19]-[20] of its reasons. Nevertheless, the Authority found that as the applicant had no political involvement beyond voting for the BNP in elections, there was not a real chance that the applicant would be seriously harmed in Bangladesh as a result of political violence. The Authority’s finding was open to it in light of the country information.
[36] RD 151 at [5].
I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Authority.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order.
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 thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 October 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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