BDE17 v Minister for Immigration

[2018] FCCA 2476

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2476

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred by failing to take taking into account relevant considerations – whether the Authority erred by not inviting the applicant to a hearing – whether the Authority erred in failing to apply the division of pt.7AA of the Migration Act 1958 (Cth) – denial of procedural fairness – test for persecution was not applied in accordance with sub-s.36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Interpretations Act 1901 (Cth), s.25D
Migration Act 1958 (Cth), ss.36, 65, 414, 415, 473CA, 473CC, 473DA, 473FB, 499, sub-div.(a) of div.3, pt.7AA

Other materials cited:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 31

Cases cited:

Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481

Applicant: BDE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 809 of 2017

Judgment of: Judge Smith

Hearing date: 15 August 2018

Date of Last Submission: 15 August 2018

Delivered at: Sydney

Delivered on: 15 August 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms L Helsdon, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 809 of 2017

BDE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 8 March 2017.  The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Bangladesh who arrived in Australia on 17 September 2012 as an unauthorised maritime arrival, although at the time he would have been called an offshore entry arrival. After his arrival, he was given permission by the Minister to make an application for a protection visa and he did so on 12 February 2016.  The claims he made in support of that application were summarised by the Authority in [5] of its reasons:

   •The applicant was born in Chotopodawlia, Jessore District of Bangladesh in 1978.

   •At the age of 21 he became actively involved in BNP[1]. He was a leader and organiser of the BNP. He organised meetings for BNP members and arranged for people to attend public demonstrations. He encouraged people to support the BNP. He did this role from the time he joined the BNP up until 2011. His entire family including his wife and siblings supported the BNP.

   [1] Bangladesh National Party.

   •His uncle [Md M] was a leader in the BNP and the BNP representative in the government of his area. He helped his uncle by organising demonstrations.

   •He ran a fish farm which he started at 26 years old. He employed a number of labourers, all BNP members.

   •In 2008 the AL[2] came into power. The AL was strongly opposed to the BNP and its supporters. They discouraged BNP members from organising and recruiting. The AL knew him as an active BMP member.

   [2] Awami League.

   •In approximately January 2012 three active AL members [R], [M] and [A] approached him in the market place. They told him he could not stay in Bangladesh as long as he was a member of the BNP. They told him he could not continue to operate his fish farm as they operated a similar business nearby and did not want a BNP supporter competing with them. They demanded money from him.

   •About a week later these men poisoned all three of his fish ponds causing damage of about 2 million taka. They did this because they were AL members and he was a BNP member who refused to stop advocating for the BNP or give them money.

   •That day he went to the police station to report the matter but the police refused to help him because he supported the BNP and the AL was in power.

   •A few hours later he went to a tea house in the local market place. He was sitting there when approximately eight men including [R], [M] and [A] approached him carrying guns. They asked him to step outside and told him that he had gone to the police to report the matter. The other people in the tea shop helped him escape and he fled home.

   •That evening [R], [M] and [A] came to his house with several other members of the AL. He fled out the back door. His wife went to talk to the men; they pushed her, went into the house looking for him and damaged property. The applicant fled to Dhaka where he lived for six months before departing in July 2012.

   •In Dhaka he worked as a forklift driver. The AL members would come to his house in his village, harass his wife and demand to know where he was. They tried to seize his land.

   •In approximately February 2012 [R], [M] and [A] killed his cousin [AK] because he was an active supporter of the BNP. [AK] was targeted because he was the applicant's cousin.

   •On approximately 28 June 2017 AL members came looking for him in Dhaka where he was staying with a friend. He was not at home but the friend warned him not to come home He left Bangladesh on 5 July 2012.

   •In July 2013 his cousin [Z] was killed in the market place by [R] and several AL members because he supported the BNP.

   •The applicant fears harm on his return to Bangladesh from AL members because he was an active supporter of the BNP, he refused to cease his activities for the BNP or hand over money from his business.

   (Names omitted)

3. The applicant was interviewed by a delegate of the Minister for the purposes of consideration of that application and on 13 January 2017, the delegate made a decision to refuse to grant the applicant a protection visa.

4. In light of the method of his arrival and other circumstances relevant to the applicant, the decision of the delegate was a fast track reviewable decision and so was referred by the Department of Immigration to the Authority pursuant to s.473CA of the Migration Act 1958 (Cth). On 8 March 2017 the Authority made its decision, without having interviewed the applicant or obtaining from him any further information.

5. The findings of the Authority were summarised accurately in the first respondent’s submissions at [8] to [12]:

   8The IAA did not accept that the applicant was a leader, organiser or member of the BNP as he had claimed, having regard to the following:

   8.1First, the evidence given by the applicant to the delegate regarding when he had joined the BNP contradicted the information given in his entry interview and contained in his protection visa application (CB 204 [13]).

   8.2Secondly, the applicant’s evidence regarding the membership process for the BNP was inconsistent with the country information before the IAA. The IAA considered that had the applicant been responsible for encouraging new members to join the BNP as claimed, he would have exhibited familiarity with the membership process (CB 204 [14]).

   8.3Thirdly, the applicant did not demonstrate any knowledge of the BNP’s manifesto and values, as would be expected of someone who claimed to hold a ‘leader and organiser’ role for the BNP since 1999 (CB 205 [15]).

   8.4Fourthly, the applicant could not remember the date on which he had last voted in an election (CB 205 [16]).

   8.5Fifthly, and finally, the letter signed by “[M] President of Hadripota” provided by the applicant with his protection visa application appeared on its face to be inconsistent with the evidence given by the applicant at the delegate interview that Milon was a union leader for Shamkarpur (CB 205 [18]).

   9On the basis of the above, the IAA was not satisfied that the applicant was a leader, organiser or member of the BNP in Bangladesh, or that he had any intention of becoming a member (CB 205 [18]). The IAA also had regard to evidence given by the applicant at the interview with the delegate that he did not wish to be involved with the BNP in the future (CB 205 [18]).

   10The IAA rejected the applicant’s claims to have had his fish farm poisoned by members of the Awami League, having regard to inconsistencies between the information provided by the applicant in his entry interview, his visa application and before the delegate in respect of the date and extent of the poisoning, and his actions subsequent to this alleged event (CB 205 -206 [19]-[23]). The IAA also rejected the applicant’s claims that members of the Awami League persisted in “torturing” his family by demanding money or threatening to kidnap them, had attempted to seize his land, or had traced him to Dhaka, causing him to flee Bangladesh (CB206-207 [23]-[24]). On the basis of its credibility concerns, the IAA did not accept that the applicant’s cousins [Z] or [AK] were killed by Awami League members (CB 207[25]).

   11Having rejected the applicant’s claims of past harm, the IAA was not satisfied that the applicant would be persecuted in the future for these reasons (CB 208 [28]). On the basis of its anterior findings of fact, the IAA was also not satisfied that there was a real risk of the applicant suffering significant harm for the reasons claimed (CB 209 [33]).

   12While not expressly claimed by the applicant, the IAA also considered whether he would face harm for reason of his being a failed asylum seeker. However, on the basis of the country information before it, the IAA concluded that he would not (CB 208 - 209 [29], [34]).

   (Names omitted)

6. By an amended application, the applicant raises a large number of grounds.  There are, on one view, seven grounds with a number of particulars to each ground.  The applicant did not file any written submissions in support of them, as ordered by the Court, and did not make any oral submissions when he appeared unrepresented today at the hearing.

Consideration

1. The grounds in the application appear to be crafted by somebody with some knowledge of the migration law of this country but, nevertheless, are somewhat difficult to follow.  The first ground is that the Authority mistook and misconstrued the facts.  In making the decision, the Authority failed to take into account relevant considerations and took into account irrelevant considerations and made a decision on irrelevant facts and findings.

2. While, on its face, this ground appears to raise an error that might be described as jurisdictional, the particulars disclose that it does nothing more than to seek to attack the merits of the Authority’s decision.  The first and third particular are nothing more than an assertion of the applicant’s claim that is made in support of his application, and the second particular is an assertion that the Tribunal failed to take into account the applicant’s membership of the BNP.

3. It is clear that that is not the case.  Paragraph 18 of the Authority’s reasons, for instance, discloses that the Authority had considered but rejected the applicant’s claim to have been a member of the BNP.  Thus, the assertion can only make sense on the facts if “failed to take into account” means failed to accept. Mere disagreement with an Authority’s or other decision-maker’s findings of fact does not disclose jurisdictional error.  For that reason, the first ground must be rejected.

4. The second ground is that the Authority made jurisdictional error when it failed to invite the applicant for a hearing.  The applicant claims that not asking for new information at an interview is itself a jurisdictional error.  The particulars to the ground, however, are different.  The applicant asserts that the Department of Immigration referred the matter to the Authority without informing the applicant and without any consent or knowledge of the applicant.  I will deal with the second ground and its particulars separately.

5. The Authority is to conduct its review under the provisions of pt.7AA of the Act. Section 473DA, which is found in sub-div.(a) of div.3, provides that that division is an exhaustive statement of the requirements of the natural justice hearing rule. Amongst the provisions found in div.3 is that, subject to the provisions, the Authority must review a fast track reviewable decision by considering the material before it without accepting or requesting new information and without interviewing the referred applicant.

6. It is difficult, in the face of that provision, for the applicant to argue that the mere fact of not asking the applicant to an interview was jurisdictional error.  That is not to say that the failure to ask an applicant to an interview can never amount to jurisdictional error but that is not what the applicant asserts.  Here, I can see no circumstances which might have compelled the Authority, at the risk of jurisdictional error, to invite the applicant to attend an interview or otherwise give new information.

7. First, the applicant was informed that he could provide written submissions and other matters to the Authority for consideration.  Secondly, he obtained representation for the purposes of the review but he did not put forward any new information or, indeed, any submissions concerning the delegate’s decision.  He made no request for an interview and there was no new issue that arose on consideration by the Authority which would have required it, in order to act reasonably, to obtain any further information from the applicant, whether at interview or otherwise.  For those reasons, the first part of ground 2 is rejected.

8. The second part of ground 2, which is found in the particulars, must also be rejected. Simply put, that is because the referral of the matter to the Authority is simply an incident of the statutory regime implemented in pt.7AA of the Act. In light of that, it cannot have been beyond the power of the Authority to act in circumstances where the provisions of the Act are complied with.

9. The third ground is that the practice direction issued under s.473FB provides, in essence, that a written submission may be given. The balance of the paragraph however, does not appear to raise any legal error. The paragraph goes no further than summarising what the practice direction says. It has been established by authority of the Federal Court that the practice direction, in a form which appears to have been issued in this case, was within the power provided by s.473FB of the Act. For that reason, ground 3 must be rejected.

10. The fourth ground is very difficult to understand.  It says (without alteration):

    The issue is that the IAA used which section of the Migration Act related with using information for making decision. It was section 473 CB or section 473 FB of the Migration Act?

11. The applicant claims that the Authority made a jurisdictional error in the name of a mechanism of limited review and when it failed to apply the division of pt.7AA of the Act. That does not make any sense to me. The particulars are that a copy of the decision of the delegate was sent to the applicant but the applicant was not aware that the decision would go automatically to the Authority without his consent or information or signature.

12. The applicant says that during the Departmental interview he was not told, or made aware that after the decision of the Department, he had no review right or that the Authority can make a decision based on material supplied only by the Department.  The applicant claims that the Authority did not process his application for review in a judicial manner and he was completely denied procedural fairness and natural justice.

13. I take that all together to mean the same as ground 2; namely, that the procedure set out by the Act for the review under pt.7AA is, in itself, unfair. As I have explained above in respect of ground 2, that argument does not support the conclusion that the Authority fell into jurisdictional error. It is not for the Court to inquire into the wisdom of the policy behind pt.7AA but only to ensure that the Authority has acted in accordance with its provisions.

14. Ground 5 is that the Authority made a jurisdictional error when it failed to hold that the Department mistook or construed the facts and assessed the application based on the irrelevant and old information supplied by the DFAT[3] Country Information Report, Bangladesh.  As explained by the High Court in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 at [17]:

    ...when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. ....

    [3] Department of Foreign Affairs and Trade.

15. For that reason alone, the first part of ground 5 is rejected.  The balance of ground 5 makes assertions about errors made by the Department, including the way it conducted the interview and also the claim that it contravened Article 31 of the Refugees Convention[4].  In light of the scope of the review as explained by the High Court in M174/2016, none of those matters gives rise to jurisdictional error in the Authority’s decision.  I would add in respect of the assertions concerning the interview, that there is nothing in the evidence before me to support them and I would in any event, have rejected the ground based upon the assertions.

    [4] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).

16. In respect of Article 31 of the Refugees Convention, there are two things that should be said.  First, contrary to the assertion by the applicant in the ground, that the Article does not deal with an obligation to deal in good faith but rather, it provides that contracting States shall not impose penalties on refugees on account of their illegal entry or presence into the Territory without authorisation, provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

17. Secondly, even if the Department were to have acted in breach of Australia’s obligations under that Article, such a breach cannot impact upon the Authority of the review to exercise a power, unless it has acted into the domestic law of Australia, in such a way as to make compliance with it a precondition to the Authority’s power to review.  For those reasons, ground 5 is rejected.

18. Ground 6 is that the applicant was denied procedural fairness when he was forced to continue an interview without any desire to participate in the interview.  The particulars of the ground do not relate, necessarily, to that ground.  Leaving those aside for the moment, the ground must be rejected for a number of reasons.  First, as I have explained already, any error in the delegate’s decision does not affect the Authority’s decision with jurisdictional error.  Secondly, and in any event, there is nothing to establish that the applicant was forced to continue the interview and had no desire to participate in it.

19. The first paragraph of particulars contains a number of separate grounds.  The first is that the Authority blindly followed the delegate and mistook the facts.  I do not accept that.  The summary of the Authority’s findings set out above clearly shows that the Authority considered all of the material before it and applied its own mind to an assessment of that material.  Whether or not it mistook the facts is not a matter for me to decide.

1. The second particular is that the applicant’s weakness to present evidence in sequence became a serious concern about the applicant’s credibility.  The Authority came to the conclusion that the applicant had not told the truth in relation to crucial aspects of his claims.  Those two assertions may be accepted as far as they go, but findings of credit are often matters that are necessary for the Authority in determining whether or not the criteria for the grant of a visa are satisfied.

2. As such, there is nothing wrong, per se, with the Authority making credit findings. 

3. The next part of the first particular is that the whole interview was conducted to destabilise the credibility of the evidence. That assertion suggests an element of bad faith in the Department.  Such a serious allegation could not be accepted without properly being identified and particularised, and certainly not without evidence.  There is no evidence in this case and it is rejected.

4. The second particular also has two parts.  The first is that the applicant claims that whatever he submitted to the Department was true.  That may be so but, once again, it is not my role to determine the truth or otherwise of the applicant’s claims.  The second part of the particular is that the Authority’s decision was unreasonable when it came to the conclusion that all documents from Bangladesh are fraudulent and bogus and they cannot be accepted as authentic documents for the applicant’s claims.

5. The Authority did not make any such finding.  At [17] of its reasons it referred to a letter provided by the applicant with his application.  However, given the discrepancies between it and the applicant’s own evidence, the Authority gave it little weight.  For those reasons, ground 6 is rejected.

6. Finally, the applicant says in ground 7 that the Department’s finding of reasons were confused and the test for persecution was not applied according to the rules of the Act and, in particular, sub-s.36(2)(aa) of the Act.  There are eight paragraphs of particulars.  Leaving those aside for one moment, the ground itself must fail as being an attack on the Department’s decision.  As I have said twice already, any error in the Department’s decision does not infect the Authority’s decision with jurisdictional error.

7. Returning then to the particulars, I will deal with them one at a time, although there is a common theme in some of them.  The first particular is that the applicant’s fear of persecution fell within the complementary protection provisions of the Act.  That is an assertion, in effect, that the Authority was wrong to conclude otherwise and so does not raise jurisdictional error. 

8. The second particular, that the applicant “left his country because of constant threates [sic] and there was a high risk to his life in Bangladesh” and that there is a risk that he would be harmed if he were to return.  That is a re-statement of the applicant’s claims to support his protection visa application, and as such, again does not raise jurisdictional error.

9. The third particular is that the Department adopted an unduly harsh approach to assessing the fear of harm.  The “Department failed to account all the circumstances of fear and harms in which the applicant lived in Bangladesh”.  This ground fails for the same reason as I have given in respect of ground 7 overall.  If I were to understand the reference to “Department” to be a reference to the Authority, it would also be rejected.

10. At [26] and [27] of its reasons, the Authority summarised the test to be applied in respect of the criterion in sub-s.36(2)(a) and explained at [28] that that test was not satisfied because of the factual findings made by the Authority. The same test was applied in [29]. In respect of the criteria in sub-s.36(2)(aa), the Authority accurately summarised the relevant test in [31] and [32] and then applied the test that it had summarised in [33] through to [35]. Nothing in those critical paragraphs reveals any wrong approach taken by the Authority to the task set by it under the Act. The fourth paragraph of particulars is that the Department failed to give real reasons for not applying the criterion under sub-s.36(2)(aa). Again, an attack on the Department’s decision, it is irrelevant to the present case and for the reasons I have explained in the previous paragraph, if the reference to “Department” were taken to be a reference to the Authority, the ground also fails. The Authority clearly made findings of fact and explained why it made those findings, set out the test and then applied the facts to the test. That is an orthodox approach to giving reasons for a decision and one that is consistent with the obligation under the Act understood in light of s.25D of the Interpretations Act 1901 (Cth). 

11. The fifth particular again attacks the Department’s interview and must fail for the same reasons I have given in respect of ground 5.

12. The sixth and seventh particulars essentially assert that the Authority failed to apply the divisions of the Departmental guidelines. Those guidelines, it may be inferred, are the Department’s Procedure and Advice Manual (PAM) 3. In Direction No. 56 made by the Minister under s.499 of the Act, there is a requirement upon decision-makers exercising certain powers to take account of those guidelines.

13. The difficulty for the applicant’s argument here is that the Authority was not exercising one of the specified powers. Clause 2 in Direction No. 56 specifies that the relevant powers are under ss.65, 414 and 415 of the Act. The Authority was not exercising any of those powers. Rather, it was exercising the power under s.473CC of the Act. For that reason, there was no obligation on the Authority to have regard to, or to apply the provisions of the PAM 3.

14. The final particular also refers to the guideline.  It is rejected for the reasons I have given in respect of the previous two particulars.  There is also an assertion amongst the many other assertions in the particular that the Department made its decision with a preoccupied mind.  Again, an attack on the Department’s decision has no impact upon these proceedings but it may be that the applicant is asserting that the Authority appeared to be or was actually biased.

15. That, like an assertion of bad faith, is a serious assertion.  It is one that ought to be clearly made and clearly established on the material before the Court.  However, there is no material in the evidence before me to suggest any prejudgment of the matter.  I would add that it is very difficult to establish prejudgment just on the basis of the Authority’s reasons alone.  For those reasons, I reject the final particular and the whole of paragraph 7.

Conclusion

1. I am not satisfied that there is any jurisdictional error in the Authority’s decision, and for that reason the application must be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       12 September 2018