BDR18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BDR18 v Minister for Home Affairs [2020] FCA 212

Appeal from: BDR18 v Minister for Home Affairs [2018] FCCA 2737
File number: NSD 1406 of 2018
Judge: LEE J
Date of judgment: 26 February 2020
Catchwords: MIGRATION – appeal from Federal Circuit Court – whether claim raised clearly or squarely on the material before the delegate and the Immigration Assessment Authority – whether a claim can be new information under s 473DC(1) of the Migration Act 1958 (Cth) – whether Immigration Assessment Authority’s failure to consider exercising its discretion under s 473DC(3) to invite the appellant to provide comment on inconsistencies in evidence was legally unreasonable – whether Immigration Assessment Authority failed to comply with s 473DD – ground not raised below – leave refused – appeal dismissed
Legislation:

Migration Act 1958 (Cth) ss 473DC, 473DD, 473DE

Evidence Act 1995 (Cth) s 140

Federal Court of Australia Act 1976 (Cth) s 37M

Cases cited:

AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503

BDR18 v Minister for Home Affairs [2018] FCCA 2737

CVK16 v Minister for Immigration [2017] FCCA 235

CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; (2017) 257 FCR 297

DFW16 v Minister for Immigration and Border Protection [2018] FCA 746

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551

DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170; (2018) 265 FCR 538

FIR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 122

Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609; (2008) 49 AAR 77

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588
Date of hearing: 31 January 2020
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 82
Counsel for the Appellant: Ms J Ambikapathy
Solicitor for the Appellant: D’Ambra Murphy Lawyers
Counsel for the First Respondent: Mr T Reilly
Solicitor for the First Respondent: HWL Ebsworth Lawyers
Counsel for the Second Respondent: The Second Respondent entered a submitting notice save as to costs

ORDERS

NSD 1406 of 2018
BETWEEN:

BDR18

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

LEE J

DATE OF ORDER:

26 FEBRUARY 2020

THE COURT ORDERS…

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Details
Case
[2020] FCA 212
Decision Date

CaseChat Overview and Summary

In the case of BDR18 v Minister for Home Affairs, the appellant, BDR18, challenged a decision made by the delegate of the Minister for Home Affairs, who had refused to grant him a visa. The appeal was heard in the Federal Circuit and Family Court of Australia, which dismissed the appeal and refused leave to appeal to the High Court. The primary issues before the court were whether the appellant's claim had clearly or squarely arisen on the material before the delegate and the Immigration Assessment Authority (IAA), whether the IAA's failure to consider exercising its discretion under section 473DC(3) to invite the appellant to comment on inconsistencies in evidence was legally unreasonable, and whether the IAA had failed to comply with section 473DD. The appellant argued that the Country Information Contention, which was that Afghan youth returnees experience worse mental health outcomes than non-returnees and that they are deprived of access to healthcare, should support a claim to fear persecution on the basis of his status as a member of a social group, being Afghan youths. However, the court held that the Country Information Contention was put forward to support a claim to fear psychological harm, not on the basis of a fear of persecution. The court also found that the IAA did not fall into jurisdictional error by failing to consider exercising its discretion under section 473DC(3) to invite the appellant to comment on inconsistencies in evidence, as the inconsistencies were not new information under section 473DC(1) of the Migration Act 1958 (Cth).

The court held that the IAA's failure to consider exercising its discretion under section 473DC(3) to invite the appellant to comment on inconsistencies in evidence was not legally unreasonable, as the inconsistencies were not new information under section 473DC(1) of the Migration Act 1958 (Cth). The court further held that the IAA had not failed to comply with section 473DD, as the IAA had considered the appellant's evidence and had made findings on the credibility of the appellant's evidence. The court held that the appeal was dismissed with costs. The appellant was not granted leave to appeal to the High Court.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Country Information Contention rises no higher than the contention that Afghan youth returnees experience worse mental health outcomes than non-returnees and that they are deprived of access to healthcare. It is not a claim to fear persecution on the basis of his status as a member of a social group, being Afghan youths. As the primary judge correctly held at [28], the Country Information Contention was put forward to support a claim to fear psychological harm, not on the basis of a fear of persecution. No claim raises clearly and squarely from this material.B.4.3 Conclusion on Ground One It is to be borne in mind that a finding that a claim clearly emerges is not to be made lightly: AYY17 at 510 [18]. Further, even if it was the case that this ground was more finely balanced, it remains to note that the appellant was represented at all stages of the application and review processes and the judicial review proceeding. As was recognised by the primary judge and by the Minister in his submissions, the appellant faces the further hurdle that a Court will be less willing to accept a submission that a claim has clearly or squarely arisen on the materials if the party is represented and has had opportunities to advance that claim: AYY17 at 510 [18], 514 [30]–[31]; Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609; (2008) 49 AAR 77 at 84 [21] per Flick J. For these reasons Ground One must fail.C GROUND THREEC.1 The particulars This ground was particularised as follows:(1)The IAA made numerous adverse credibility findings based on apparent inconsistencies and evolutions of the information arising out of the evidence given by the appellant:a.at the arrival interview on 17 September 2012, entry interview on 19 November 2012 and/or visa interview on 1 December 2016; and/orb.In his invalid protection visa application lodged on 27 September 2013 (Invalid Application), his subsequent but superseded Safe Haven Enterprise Visa application lodged 16 May 2016 (Superseded Application) and his final Safe Haven Enterprise Visa application lodged 31 May 2016 (SHEV Application).(2)The decision of the delegate made no mention of the Invalid Application or the Superseded Application.(3)On 14 December 2017, the IAA requested a copy of the statutory declaration of the appellant in the Invalid Application under a “Post Referral Request For Documents”.(4)The apparent inconsistencies or evolutions in the information provided by the appellant, particularly in relation to the Invalid Application and the Superseded Application, were not put to the appellant.(5)As a result of the apparent inconsistencies or evolutions in the information provided by the appellant, the IAA did not accept a number of the appellant's claims and upheld the decision not to grant the appellant a visa, but did so on a different basis to the delegate.(6)In these circumstances, the IAA ought to have considered whether to exercise its power under s 473DC(3) and invite the appellant, orally or in writing, to comment on the documents, the apparent inconsistencies or evolutions in the information provided by the appellant.(7)The IAA failed to do so and, accordingly, the IAA fell into jurisdictional error.C.2 The appellant’s submissions

Ratio Decidendi

Legal Principle Established

First, the appellant points to the age of the appellant being in issue before the IAA, although noting that the IAA made no express finding in relation to his age (IAA’s Age Consideration). Secondly, are the following passages (Report Contentions) in a submission made on the appellant’s behalf to the IAA on 12 December 2017 (IAA Submission), including:We also draw your attention to the opinion of Dr Schuster who also describes the difficulties young men such as [the applicant], without supportive patronage networks, face when attempting to secure accommodation in Afghanistan. The IAA Submission then set out the following portion of a transcript of interview with Dr Liza Schuster identified as being taken from a report authored by “Asylos”, entitled “Afghanistan: Situation of Young Male ‘Westernised’ Returnees to Kabul”: Also if you do find somewhere to rent, even though this is very difficult, people don’t want to rent unless it is to a family. So the expectation is that families will rent apartments. If a single person, especially a woman, even a man, in general it won't be rented to him because he will be regarded with suspicion. Why isn’t he staying with an extended member of the family or with friends? If he is alone will [he] be bringing women in, is he going to have male friends who will be drinking, is he going to disturb other members of the block? So homes are normally rented to families, you normally will know somebody who will vouch for you. If you don’t, and I've actually seen this, you might be able to persuade one of the estate agents to rent you a property but then they will follow up, they will have had a conversation with you to try and identify mutual acquaintances and go through the network until they can get some information about you. They will want to know, are you a good character, are you going to pay your bills? The good character is very important. So if you are living in Kabul and you don’t have a social network, you don't have somebody who can vouch for you, it becomes very difficult to get a contract. And it can also be withdrawn from you within days. The case which I saw, in the building where I lived, there was somebody who was moving in and they hadn't fully unloaded the furniture and the word had come back — ‘don’t rent to this person’, and they had to pack up and move again. And that's not unusual. I got my place through a friend of a friend and that’s how it works. A similar quotation is then set out (purportedly from a Professor Alessandro Monsutti). The provenance of this quotation is a little unclear, as it is footnoted to a source in the following way: “The Situation for Hazaras in Afghanistan, 9 August 2010, para 55), quoted in William Maley, “On Relocation to Kabul of Members of the Hazara Minority in Afghanistan”, 19 November 2012 , r4refugees/posts/”. In any event, the quote reads. In Afghanistan, people are linked to their families and social networks. If you are from one place, you cannot readily relocate elsewhere. The state does not provide strong services. In a society where the state provides so little support, life is organised around social networks and face-to-face relations. If someone returns to Afghanistan, he or she could not live outside his or her traditional or family area.