AZJ20 v Minister for Immigration and Multicultural Affairs
[2024] FCA 978
•28 August 2024
FEDERAL COURT OF AUSTRALIA
AZJ20 v Minister for Immigration and Multicultural Affairs [2024] FCA 978
Appeal from: AZJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2241 File number(s): NSD 1103 of 2020 Judgment of: DOWNES J Date of judgment: 28 August 2024 Catchwords: MIGRATION – appeal from decision of the (then) Federal Circuit Court of Australia – where application for judicial review of a decision of the Immigration Assessment Authority (IAA) affirming Minister’s decision to refuse Safe Haven Enterprise visa was dismissed – where grounds of appeal not particularised – whether IAA made factual findings not supported by evidence – whether IAA erred by failing to articulate circumstances under which appellant can be returned to receiving country – whether IAA failed to deal with aspects of appellant’s claims – whether primary judge erred in failing to identify any of the alleged errors of the IAA – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 65, 473BB, 473CA, 473CC Cases cited: AZJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2241
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of hearing: 12 August 2024 Counsel for the Appellant: The Appellant appeared in person. Solicitor for the First Respondent: Mr M Gao of HWL Ebsworth Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice. ORDERS
NSD 1103 of 2020 BETWEEN: AZJ20
Appellant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DOWNES J
DATE OF ORDER:
28 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to Minister for Immigration and Multicultural Affairs.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s fixed costs in the amount of $6,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWNES J:
This is an appeal from a decision of the (then) Federal Circuit Court of Australia in AZJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2241 (judgment or J).
The appellant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 24 March 2013. He applied for a Safe Haven Enterprise (Class XE) (subclass 790) visa (SHEV) on 13 April 2017. The appellant’s claims for protection are based on a fear of harm if returned to Bangladesh on the basis of politically motivated violence from the Awami League and police due to his and his family’s involvement in politics.
On 8 January 2020, a delegate of the first respondent (the Minister) refused to grant the appellant a SHEV pursuant to s 65(1)(b) of the Migration Act 1958 (Cth) (delegate’s decision).
As the delegate’s decision is a “fast track reviewable decision” (as defined in s 473BB of the Migration Act), it was referred to the Immigration Assessment Authority (the Authority) for review pursuant to s 473CA of the Migration Act on 13 January 2020.
On 14 February 2020, the Authority affirmed the delegate’s decision not to grant the appellant a SHEV pursuant to s 473CC(2)(a) of the Migration Act (Authority’s decision or AD).
The appellant sought judicial review of the Authority’s decision. The primary judge dismissed the appellant’s judicial review application with costs on 15 September 2020. That decision is the subject of the present appeal.
For the reasons that follow, the appeal will be dismissed with costs.
The appellant’s material
The appellant filed a Notice of Appeal on 7 October 2020 which sets out two grounds of appeal and seeks orders that (inter alia) the judgment be set aside. The Notice of Appeal advanced the same two grounds as those advanced in the appellant’s judicial review application below.
On this appeal, the appellant did not file written submissions. Further, at the hearing of this appeal on 12 August 2024, the appellant indicated (with the aid of an interpreter) that he did not have anything to say in response to the Minister’s written and oral submissions.
For these reasons, I will treat the appellant’s Notice of Appeal as written submissions.
Ground 1
By ground 1 of the Notice of Appeal, the appellant contends:
The Authority fell into error by making factual assumptions and conclusions that were not supported by evidence and by failing to articulate the circumstances under which an undocumented person can be returned to the Receiving Country.
This ground of appeal reproduces, in identical terms, the first ground of judicial review advanced below. The primary judge noted that, given the lack of particulars, it was difficult to assess precisely the nature of the appellant’s complaints: J [28].
As to the first part of the ground of appeal, the primary judge held that he was satisfied that the Authority considered all of the appellant’s claims, the conclusions reached were open to the Authority based on the evidence before it, and there was nothing legally unreasonable, illogical or irrational in the Authority’s conclusions: J [29]. The question, therefore, is whether the primary judge erred in making such findings regarding the Authority’s decision.
This ground of appeal appears to contend that the Authority’s findings were not supported by evidence. However, the appellant has not identified which of the Authority’s “factual assumptions and conclusions” he alleges was unsupported by evidence. Therefore, this contention must be taken to refer the Authority’s conclusions as a whole.
It cannot be said that the Authority’s factual findings and conclusions were unsupported by evidence. The Authority gave clear written reasons for its conclusions concerning the appellant’s factual claims and it referred expressly to the evidence upon which its conclusions were based. Central to the Authority’s decision was its finding that the appellant’s account lacked credibility. The Authority gave comprehensive reasons for its adverse credibility findings, including at AD [9], [29] and [32]. The conclusions and inferences reached by the Authority were open to it on the evidence which it identified and the appellant has not shown any absence of logical connection between the evidence and the Authority’s reasons: see generally Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] (Crennan and Bell JJ). There is, therefore, no error on the part of the primary judge in finding that the Authority’s factual findings and conclusions were open on the evidence and not vitiated by legal unreasonableness.
As to the second part of ground 1, the primary judge held that the Authority did consider relevant country information regarding the position of failed asylum seekers returning to Bangladesh and was satisfied that no material indicated that the appellant would be at risk of harm: J [30].
In my view, the primary judge was correct in finding that the Authority did consider whether the appellant would be harmed if returned to Bangladesh. The Authority’s reasons plainly demonstrate that it had regard to country information concerning politically motivated violence in Bangladesh and the return of individuals who had departed Bangladesh illegally and found that, on the basis of this information, the appellant would not face a “real chance of any harm” if he was to return to Bangladesh: see AD [34]–[36].
In any event, the Authority was not required to articulate the circumstances in which an individual can be returned to their receiving country and, as such, a failure to consider this matter does not disclose an appellable error. The Authority properly directed itself to its statutory task of evaluating whether the appellant met the requirements of s 36(2) of the Migration Act.
For these reasons, ground 1 must fail.
Ground 2
By ground 2 of the Notice of Appeal, the appellant contends that “[t]he Authority fell into error by failing to deal with an integer of the [appellant’s] claims leading to a failure to exercise jurisdiction.”
To the extent that I am able to comprehend this ground, which I note was not expanded on during the hearing before me, I am unable to accept the appellant’s contention. The appellant does not specify which aspects of his claims he alleged were not dealt with by the Authority. This was emphasised by the primary judge at J [31].
In any event, the primary judge found that the Authority “went into some detail” to list the appellant’s claims in its reasons and dealt with each of the appellant’s claims, discussing some “at length”. Although the Authority found against the appellant with respect to each of the claims, the primary judge was satisfied that this conclusion was open to the Authority and was not subject to legal unreasonableness, illogicality or irrationality: J [31].
In my view, the primary judge did not err with respect to these findings. The Authority’s reasons plainly demonstrate that it identified the appellant’s claims for protection (at AD [3]) and made comprehensive findings with respect to each of those claims (at AD [8]–[36]). As indicated earlier in my reasons, I consider that the Authority’s findings were open to it based on the evidence before it.
For these reasons, ground 2 must fail.
Disposition
For these reasons, and as costs should follow the event, the following orders will be made:
(1)the name of the first respondent be changed to Minister for Immigration and Multicultural Affairs;
(2)the appeal be dismissed; and
(3)the appellant pay the first respondent’s fixed costs in the amount of $6,000.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes. Associate:
Dated: 28 August 2024
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