AXB17 v Minister for Immigration
[2018] FCCA 514
•2 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXB17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 514 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – review of decisions – judicial review – decision of Immigration Assessment Authority. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(2)(aa), 473DD, 473DC |
| Cases cited: APP15 v Minister for Immigration and Border Protection [2016] HCATrans 221 BVZ16 v Minister for immigration and Border Protection [2017] FCA 958 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | AXB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 189 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 2 March 2018 |
| Date of Last Submission: | 2 March 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 2 March 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 17 November, 2017 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 189 of 2017
| AXB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a national of Bangladesh. He arrived in Australia by boat in such a way that he meets the description of an unauthorised maritime arrival as provided for in the Migration Act 1958 (Cth).
At the invitation of the first respondent he applied for a Safe Haven Enterprise (Subclass 790) visa on 14 June, 2016. To succeed in his application the applicant needed to establish that at the time of the visa decision he met either the refugee or complementary protection criteria in ss.36(2) or 36(2)(aa) of the Migration Act. On 19 December 2016, a delegate of the Minister refused the applicant a Safe Haven Enterprise visa.
Because the applicant was an unauthorised maritime arrival and because his visa application was deal with pursuant to Part-7AA of the Migration Act, the delegate’s decision was a fast track decision for the purposes of the Act. That meant that the decision was required to be referred to the second respondent for review. That reference came about on 22 December, 2016. On 16 February, 2017 the second respondent affirmed the delegate’s decision.
On 3 March, 2017 the applicant applied to this Court for orders quashing the second respondent’s decision and for the issue of constitutional writs.
The first respondent opposes that application. The second respondent enters a submitting appearance.
In his visa application, the applicant claimed to fear persecution and harm from the Awami League because he supported the Islami Chatra Shibir and Jamat-e-Islami. His claims were extensively summarised by the second respondent in its reasons for decision. The applicant did not suggest that the second respondent misunderstood any of those claims. His claim to fear persecution was based upon the following matters:
a)he was an active member of the Islami Chatra Shibir, the student unit of the Jamat-e-Islami party;
b)in 2009, he was given a bicycle to ride around and recruit new Islami Chatra Shibir and Jamat-e-Islami members;
c)in 2010, local leaders of a rival political party, the Awami League forced him off his bicycle, beat him severely and told him to leave the Jamat-e-Islami/Islami Chatra Shibir or they would kill him;
d)in November, 2011 20 Awami League members appeared at his workplace and beat him because he had not left the Jamat-e-Islami/Islami Chatra Shibir despite their prior request. After that incident the applicant sought the assistance of the police, however, the police refused to help him because the Awami League government had informed the police not to accept complaints from Islami Chatra Shibir/Jamat-e-Islami members. He claimed that the police advised the applicant that it would be better for him if he left the country; and
e)the applicant then went to his grandparents’ house for around a year, where he remained safely until October, 2012. He claimed that he discovered that the police had laid charges against him for organising anti-government movement/propaganda and were looking for him. Shortly thereafter the applicant fled to Australia.
However, the second respondent rejected the applicant’s claims that he was a member of the Islami Chatra Shibir. The second respondent set out in its reasons the analysis it undertook of the applicant’s claims and the evidence he gave to support those claims. The analysis was detailed, and in my view fair. The second respondent did not accept that the applicant was a member or a worker for Islami Chatra Shibir as he had claimed. Having regard to the analysis undertaken by the second respondent in [7] – [14] of its reasons, that the second respondent did not accept those claims was unremarkable.
The second respondent did not accept that the applicant had been attacked in 2010 and 2011 as he had claimed. Again, for reasons clearly articulated in the second respondent’s reasons for decision ([15] – [20]) that the second respondent did not accept that the applicant was attacked twice and fled his home as he had claimed is unremarkable. The second respondent considered the applicant’s claim that the police suggested that he should leave the country as implausible.
The second respondent did not accept the applicant’s claims that the police laid charges against him after the 2011 attacks while he was hiding at his grandparents’ house. The second respondent analysed the applicant’s claims and evidence about this matter (at [21] – [28]) and said (footnotes omitted):
Given the discrepancies and contradictions noted above between his statement of claims, PV interview and the documents I do not find the applicant to be a credible witness. The applicant arrived in Australia in February 2013. He lodged his application in June 2016 without these documents despite having had over three years with which to prepare them. Further country information indicates there is a significant prevalence of fraudulent documents in Bangladesh; there is no difficulty in obtaining official documents although the price varies according to the price paid. As noted above the documents do not accord with the applicant’s own evidence. I consider the applicant has fabricated these claims.
The second respondent concluded:
29. I am not satisfied that the applicant was associated with the ICS, was attacked in 2010, November 2011 and that false charges were laid against him. Given I have not accepted the applicant is a credible witness, and I have not accepted his underlying claims, I also do not accept that after his arrival in Australia the local police laid further charges against the applicant on 22 February 2013 as outlined in his statement of claims.
The applicant’s amended application filed on 17 November, 2017 sets out the applicant’s grounds of review as follows:
1. In making decision, the Immigration Assessment Authority acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
2. The IAA failed to assess my harm on the basis of my claims.
3. The tribunal failed to assess the present situation in Bangladesh since I left.
4. The tribunal decision effected by the denial of natural justice.
5. The tribunal made decision without any verification of my genuine documentary evidence and statement.
6. The Tribunal decision is identical or similar or based on the Department decision. Complete violation of merit review procedure of second respondent.
7. As Previous reported cases of federal court of Australia findings that the complementary protection obligation did not assessed properly.
8. And, IAA decision dated 16/02/2017 did not follow the proper guideline of procedure and also the Federal court findings’ in the judgement that complementary protection obligation of Australia.
9. The honourable IAA member decision dated 16/02/2017, in his FINDINGS AND REASONS clearly indicate that the IAA also finds the letter of support from BNP to be problematic and has given it no weigh. Unfortunate the honourable member did not recognized Bangladesh is a level of third world country and also most of the people are not well educated and ability of quality English (grammar). In my review decision, the IAA did not review with the complementary protection criterion. Because Federal Court recent case reference SZGIZ v first respondent for Immigration and Citizenship (2013) 212 FCR 235. The referred case by honourable IAA is not very much similar lo my claims. I will put details in my written submission later.
Particulars:
IAA unreasonably raised doubt over my claims for political opinion. The Department and the Tribunal misunderstood or misconstrued the facts which was affect the decision.
And for the safety of my life I forced to came Australia by boat. When it became worse, I decided to leave Bangladesh.
I argue that the Department and the IAA asked many irrelevant questions to test the credibility of my evidence.
The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. Sometimes I was nervous and confused at the time of interview with the Department and the tribunal. I did not understand the question properly.
For the protection of my life and I became serious target by the Police, Awami League gang and their supporters.
The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I am not too educated person.
I believe I was denied procedural fairness when the hearing was conducted not freely and fairly. I did not collect the second respondent interview CD yet. After received the CD, I will provide the transcript of IAA hearing.
The applicant has filed written submissions in support of his grounds. However, those written submissions bear little resemblance to the purported grounds of review and appear to be an accumulation of passages from various sources including case and perhaps other written submissions. They focus upon what appears to be an argument that the second respondent’s decision was irrational and that the test for irrationality ought to be seen as something of a “sliding scale”. The applicant submits:
The dynamic development of the common law, whilst the courts’ jurisdiction on judicial review remains a supervisory one, a real question exists as to whether there is a sliding scale of review, with the intensity of review depending on the subject matter of the decision. On this approach, the standard of review would be most intensive where a fundamental human right is in question: see R. (Mahmood) v. Home Secretary [2001] 1 WLR 840 paras. 16 to 19 (Laws LJ), paras. 37 to 40 (Lord Phillips M.R.); and Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 41-2 (Mason J).
That question does not arise in the present case and full arguments have not been addressed on it. It is an important question which has yet to be resolved in this jurisdiction.
The applicant further argues that:
The sliding scale proposed by the court should be adopted by the Federal Circuit Court of Australia. The effect is that, in a case such as the present which concerns fundamental rights or humanitarian protection which person came by boat with full of life risk, the standard of irrationality should be more easily satisfied than in another class of case.
The difficulty with the applicant’s argument however, is that whatever the test for irrationality might be in other jurisdictions, in this country the test has been authoritatively stated by the High Court of Australia in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
In his written submissions, the first respondent has dealt with each of the purported grounds of review set out above. Those submissions have overwhelming merit.
Ground 1 cannot succeed because the applicant does not identify any of the relevant considerations which were allegedly not taken into account by the second respondent. I cannot discern any from the material before me.
Ground 2 cannot succeed because the second respondent did indeed assess the applicant’s claims to fear persecution against the material before it. The applicant did not identify any matter that ought to have been considered by the second respondent that it did not consider. Having regard to the test for irrationality, it cannot be said that any of the second respondent’s fact finding was irrational or illogical.
Ground 3 cannot succeed because the second respondent rejected all of the material aspects of the applicant’s claims in their entirety. It rejected that the applicant had any association with the Islami Chatra Shibir, that he was attacked in 2010 and 2011 and that the police had laid false charges against him. I accept the first respondent’s submission that in those circumstances, the applicant was an ordinary Bangladeshi national with no particular characteristics or associations that might attract any adverse attention from the Bangladeshi authorities or the ruling political party. The applicant made no claims that a person of that description was at any particular risk of harm in Bangladesh and the second respondent was not obliged to consider any claim by the applicant that he was a member of a particular social group within that description.
Ground 4 cannot succeed because the factual matters asserted by the applicant in the particulars contained within his amended application are not made out on the evidence before me. In particular, he does not establish that:
a)the Department or the second respondent asked any irrelevant questions to test the credibility of his evidence;
b)there was any difficulty that arose from the manner in which the applicant was asked questions during his departmental interview;
c)the applicant did not understand the questions asked of him, although there is some evidence to show that he misunderstood one question but that was subsequently clarified; and
d)insofar as the second respondent’s decision is concerned, there was any hearing at all.
The second respondent did not interview the applicant at all. That is consistent with the procedure established under Part-7AA of the Act.
Further, as the first respondent points out to the extent that the applicant’s complaint is one of procedural unfairness by the delegate, this Court has no jurisdiction to review the decision of the delegate so that even if the delegate’s decision was affected by jurisdictional error, that of itself could have no effect on the validity of the second respondent’s decision or jurisdiction.
I accept that on the basis of the material before me, there is no basis to think that the second respondent conducted its review contrary to any of the statutory requirements in Part -7AA of the Act.
Ground 5 cannot succeed because the second respondent’s reasons show that it gave detailed consideration to each of the documents relied upon by the applicant. It noted that in some respects the documents contradicted the applicant’s claims/other evidence and after conducting such an examination the second respondent formed the view that it was not satisfied that the applicant had been charged by the police. The second respondent did not make a formal finding on the authenticity of the documents, but it did not need to do so. Nor was the second respondent required to make inquiries to verify the authenticity of the documents. Whilst a ‘‘failure to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained’’ might mean that a decision made under the Migration Act has constructively failed to exercise jurisdiction, an inquiry to ascertain the authenticity of a document is not an “obvious” one: APP15 v Minister for Immigration and Border Protection [2016] HCATrans 221 (Kiefel ACJ); Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123.
Ground 6 cannot succeed because the reasons of the second respondent make it clear that it did independently turn its mind to the merits of the case before it. As the first respondent accepts, had it not done so, “it would, undoubtedly, fall into jurisdictional error”.
Grounds 7 and 8 can be dealt with together. They are directed to the second respondent’s treatment of the applicant’s claim to complementary protection. They seem to assert that the second respondent did not decide that aspect of the applicant’s claims according to law as revealed in the authorities. As to this matter, the second respondent said:
37. A criterion for a protection visa is that the applicant is a non citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
Real risk of significant harm
38. Under s.36(2A), a person will suffer ‘significant harm’ if:
· the person will be arbitrarily deprived of his or her life
· the death penalty will be carried out on the person
· the person will be subjected to torture
· the person will be subjected to cruel or inhuman treatment or punishment, or
· the person will be subjected to degrading treatment or punishment.
39. I have not accepted that the applicant was a member of the Bangladesh Islami Chatra Shibir (ICS). I have not accepted that he was attacked and beaten severely, firstly, in 2010 and secondly, in November 2011, by AL members who threatened to kill him if he did not stop being a member if the ICS and join their party. I have not accepted the police laid false charges against the applicant on 24 October 2012 for trying to organise an anti-government protest movement and propaganda against the government. I have not accepted the police laid further charges against the applicant after his after in Australia on 22 February 2013. As a consequence, I am not satisfied there is a real risk of the applicant suffering significant harm in relation to these claims.
40. I have found that the applicant does not face a real chance of suffering serious harm, or harm of any kind, for his illegal departure from Bangladesh, or as a returning asylum seeker or returning failed asylum seeker now or in the foreseeable future. There is, similarly, no real risk that the applicant would suffer significant harm upon his return to Bangladesh.
I accept the first respondent’s submissions that the second respondent clearly considered the issue of complementary protection. There is nothing to suggest that it misapprehended its task, or that it applied any incorrect test when determining that claim. Grounds 7 and 8 fail to disclose any discernible jurisdictional error on their face.
Ground 9 cannot succeed because, on any construction, it does not raise an identifiable argument that the second respondent’s decision was affected by jurisdictional error. At best it is an argument with the merits of the second respondent’s decision.
In his written outline, the first respondent’s counsel has dealt with an additional matter that arises on the material before the court. He submits (footnotes omitted):
74. Acting as a model litigant, the Minister notes that the IAA’s decision in this case involved the purported provision of “new information” by the Applicant - which the IAA dealt with under s 473DD of the Act.
…
76. In this case, the relevant passage of the IAA’s reasons (where it dealt with the “new information” provided by the Applicant) is set out below:
[4] On 11 January 2017 the IAA received a statement from the applicant. The statement is addressed to the delegate and provides further explanation on the points the delegate put forward to the applicant during his protection visa (PV) interview of 13 December 2016, which the delegate ultimately refused to accept. Another paragraph provides the applicant’s opinion on the current political situation in Bangladesh. I consider this to be new information. I have reviewed the interview with the delegate and it is clear that the applicant was on notice of the issues and was given ample opportunity to raise these matters at his interview or prior to the decision being made. Having regard to the circumstances of this case, I am not satisfied there are exceptional circumstances for considering this new information.
77. The Minister notes this because of the line of cases where it is has been found that, in considering whether “exceptional circumstances” existed for the purposes of s 473DD of the Act, the IAA has fallen into jurisdictional error by giving an unduly narrow construction to the meaning of the phrase “exceptional circumstances” .
78. That has primarily arisen in cases where, on true construction of the IAA’s reasons, the second respondent has been found to have considered the Applicant’s failure to provide the “new information” earlier to be determinative of the question of whether or not exceptional circumstances existed (bearing in mind that the phrase “exceptional circumstances” is of wide import and permits all relevant circumstances of the case being considered).
The first respondent submits that the issue highlighted above does not arise here because:
a)the second respondent’s reasons expressly provide that it determined the “exceptional circumstances” issue “[h]aving regard to the circumstances of this case”. No narrow construction was given to such a phrase by the second respondent;
b)in the way the second respondent referred to the new information provided by the applicant, it is apparent that the second respondent appreciated the nature and effect of the new information. The second respondent had clearly at least turned its mind to the content and relevance of the information;
c)notwithstanding that the second respondent did not discuss the potential relevance of the “new information” provided by the applicant in its reasons for decision in any detail:
i)it was not bound to discuss it in any more detail than it had; and
ii)the material lacked any real or meaningful probative value in the context of the case in any event;
d)the second respondent was only obliged to give reasons concerning its ultimate conclusion to affirm the delegate’s decision (and not subsidiary determinations pertaining to its satisfaction of issues arising under s.473DD of the Act); and
e)in determining whether or not “exceptional circumstances” exists, s.473DC of the Act does not suggest that the second respondent is bound to consider any particular matter, nor is there anything in the subject-matter, scope or purpose of the Act to indicate that the second respondent was required to consider any particular matter.
I accept those submissions. There is nothing here to indicate that the second respondent has fallen into the type of error described in cases such as BVZ16 v Minister for immigration and Border Protection [2017] FCA 958.
In my view the second respondent’s decision was not affected by jurisdictional error. The application must be dismissed with costs.
I certify that the preceding thirty–one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 March, 2018.
Date: 2 March 2018
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