BHX18 v Minister for Home Affairs
[2019] FCA 705
•6 May 2019
FEDERAL COURT OF AUSTRALIA
BHX18 v Minister for Home Affairs [2019] FCA 705
Appeal from: Application for extension of time: BHX18 v Minister for Home Affairs [2018] FCCA 3498 File number: NSD 59 of 2019 Judge: RARES J Date of judgment: 6 May 2019 Legislation: Migration Act 1958 (Cth) ss 36, 65, 414, 415, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC Cases cited: BHX18 v Minister for Home Affairs [2018] FCCA 3498
Bienstein v Bienstein (2003) 195 ALR 225
DTH17 v Minister for Immigration [2018] FCCA 729
Jackamarra v Krakouer (1998) 195 CLR 516
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Date of hearing: 6 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 30 Counsel for the Applicant: The applicant appeared in person assisted by an interpreter Solicitor for the First Respondent: Ms A Nanson of Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 59 of 2019 BETWEEN: BHX18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
6 MAY 2019
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an application for an extension of time in which the applicant can file a notice of appeal from the decision of the Federal Circuit Court given on 29 November 2018 that dismissed his application for Constitutional writ relief against the decision of the Immigration Assessment Authority made on 19 February 2018 that affirmed the decision of a delegate of the Minister made on 14 December 2017 to refuse his application for a safe haven enterprise, or protection, visa: BXH18 v Minister for Home Affairs [2018] FCCA 3498.
Background
The applicant filed the application for an extension of time on 14 January 2019, together with an affidavit in support in which he said that he had not been able to lodge his appeal in time because he had not been advised by the Federal Circuit Court that it had decided his application for Constitutional writ relief. However, he was present in Court on 29 November 2018 when her Honour gave oral reasons and made orders dismissing his application to that Court. The applicant said that he had received a letter from the Federal Circuit Court with a copy of her Honour’s reasons on around 7 January 2019 and had lodged his application for an extension of time within another seven days. He also said that he had insufficient funds and he did not mean to cause the delay, but that matters were beyond his control.
The draft notice of appeal raises two grounds that were not matters raised before the trial judge and go to attacking the decision of the Authority. In essence, the applicant claimed that he was entitled to protection either as a refugee under s 36(2)(a) of the Migration Act 1958 (Cth) or to complementary protection under s 36(2)(aa) on a number of bases.
The applicant is a Sunni Muslim and a citizen of Bangladesh. His parents and eight siblings continue to reside in his home village and two other siblings live elsewhere in Bangladesh. He claimed that he was a farmer, but that his family also had a shop in the village and that one day, while he was manning the shop, he witnessed a murder at a political gathering of the Bangladesh National Party (the BNP) committed by followers of the governing party, the Awami League. He claimed that his family were supporters of the BNP and that occasionally he attended meetings and became involved in BNP political processions. He also claimed that his elder brother was an active member of the BNP.
He claimed that a fight broke out in about January 2013 while he was working at the shop and a BNP member was killed. He claimed that a few days afterwards other BNP supporters came to the shop and asked him to be a witness for the police investigation into the death, but that he refused to do so. He claimed that, subsequently, Awami League members came to the shop and threatened to kill him if he gave evidence against them, and that, about a week later, they again threatened him at his house. He claimed that about a month after the second incident he fled.
The applicant also raised a claim about an ongoing family dispute concerning the sharing of land involving one of his paternal uncles, whom he claimed had taken his immediate family’s land as a result of the family being caught up in the threats from the Awami League over the murder.
He claimed that in early 2017, well after he arrived in Australia, the Awami League member who had been instrumental in the threats to him in 2013 came to the family home and attacked one of the applicant’s brothers after discovering the applicant was no longer there, leaving his brother blind in one eye. He claimed that if he returned to Bangladesh, BNP supporters would continue to pursue him to give evidence in the murder investigation and that, similarly, Awami League supporters or members and organised crime syndicates associated with the Awami League would harm him to ensure that he did not give evidence.
The Authority’s decision
The Authority was not satisfied that the applicant had witnessed any murder or had been approached, as he had claimed, by persons associated with either the BNP or the Awami League. It was not satisfied that the applicant or his brother were ever active or visible supporters or members of the BNP. It found implausible that either the BNP or the Awami League members would have approached the applicant to be a witness or to deter him from making a report to the police. That was because, it found, the Awami League was able to operate with a degree of impunity under the protection of police, according to the country information that the Authority accepted. It did not accept that the applicant’s brother was attacked by Awami League members in 2017.
Given its other findings, the Authority did not accept that any dispute relating to land within the applicant’s family occurred during the period in which he claimed to have been threatened by the Awami League members or supporters, or approached by the BNP.
The Authority accepted that the applicant had been visited in Australia whilst in detention in May 2013 by Bangladeshi officials, and that subsequently his father had had to pay money to Bangladeshi police to confirm his identity.
The Authority concluded that it was not satisfied that there was a real chance of the applicant suffering any harm (whether serious or significant) on return to Bangladesh from the police, Awami League or organised crime entities associated with the Awami League, because it did not accept the applicant’s claim that he had witnessed any murder. Given the applicant’s lack of political involvement before his departure to Australia, the Authority was also not satisfied that he would be politically active on his return to Bangladesh, or that any involvement he would have in support of the BNP would extend beyond merely supporting it. The Authority was not satisfied that the applicant had a well-founded fear of any harm as a result of him or his family having, in the past, supported or been associated with the BNP, or that he faced a real chance of persecution or significant harm in the future were he to return to Bangladesh, either at the hands of the Awami League or anyone else. Based on its findings, the Authority concluded that Australia did not owe the applicant protection obligations under s 36(2)(a) or (aa).
The proceeding in the Federal Circuit Court
The applicant appeared before the trial judge and represented himself with the assistance, as her Honour noted, of a Bangladesh interpreter, as he has done before me today. He claimed, in his application in the Federal Circuit Court, that the Authority had failed to engage:
·with his claims when conducting its inquisitorial inquiry;
·in an active intellectual process in assessing his claim under the complementary protection ground; and
·in genuine and realistic consideration of his claims because it failed to take into account Ministerial Direction No 75, or to comply with the Direction or mention it in its decision.
Her Honour rejected all three of those grounds. She found that the Authority had taken into account the applicant’s claims concerning the Awami League, those in relation to his and his family’s involvement with the BNP, and his fear of harm on his return home because of his having witnessed a murder. Her Honour found, and I agree, that the Authority gave clear, cogent and considered reasons for rejecting his claims in connection with his asserted political profile. She noted that the Authority had found that, had the applicant been of any interest to the Awami League, it would not only have approached his family in 2017 after the return to the applicant’s home village by the Awami League member who had threatened the applicant, but would have done so several times. The trial judge found that the Authority had considered, and save for accepting that his father was a latent supporter of the BNP, had rejected the applicant’s claims of any political association with the BNP, either directly or through family members, and had found that the applicant had overstated his own interest and that of his family in relation to the BNP.
Her Honour rejected the second ground. She found that the Authority relied on its findings that it was not satisfied the applicant faced any real risk of serious or significant harm for the purposes of s 36(2)(a) or (aa), and therefore no occasion for affording him complementary protection arose. Her Honour found that the Authority had considered the applicant’s claim, under the complementary protection ground, to fear harm from organised crime entities associated with the Awami League, and had rejected those claims because it did not accept his claim to have witnessed the murder. I see no arguable error in her Honour’s conclusion for rejecting the second ground.
The third ground concerned the Direction. As her Honour observed, the Direction related to claims made for protection under s 36(1C) and 36(2C)(b), each of which dealt with the criterion for the grant of a protection visa that the visa applicant is not a person whom the Minister considers, on reasonable grounds, is a danger to Australia’s security or, having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community. There was no suggestion that the applicant was such a person, and accordingly, the Direction could not have applied to him.
Counsel then appearing for the Minister suggested that the applicant’s reference to the Direction was erroneous, and I think that that suggestion was well-founded. Counsel had suggested that the applicant intended to refer to Ministerial Direction No 56 that applied to decision-makers performing functions or exercising powers under ss 65, 414 or 415 of the Act when considering an application for grant of a protection visa and when reviewing a decision to refuse to grant a protection visa. Her Honour followed a decision of Judge Smith in DTH17 v Minister for Immigration [2018] FCCA 729 at [36] where his Honour observed that the Authority was not performing any function under ss 65, 414 or 415 of the Act. It is not necessary to decide, for the purposes of this application, the correctness of that view. However, since s 473CC required the Authority to review a fast track reviewable decision that the Minister had referred to it under s 473CA, and gave it power either to affirm the decision or to remit it for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by the regulations, prima facie, a decision of the Authority to affirm a decision of a delegate to refuse to grant a visa directly involved the exercise of the Minister’s power under s 65.
The applicant did not particularise any basis on which to suggest that the Authority had not followed any Ministerial direction that was relevant. The gravamen of the applicant’s complaint was that, on 2 February 2018, the Department of Foreign Affairs and Trade had issued a new country report for Bangladesh (the 2018 DFAT report), that stated that:
the security situation in Bangladesh is volatile and can deteriorate quickly with little warning. Security threats include politically-motivated violence, particularly ahead of the next national elections in late 2018 or early 2019.
As I have noted, the delegate’s decision was given on 14 December 2017 and the Authority’s two months later, on 19 February 2018. The Authority had power to obtain new information under Div 3 of Pt 7AA of the Act. In particular circumstances, under s 473DC, the Authority had power to get any documents or information that were not before the Minister when the Minister made the decision under s 65 that it considered relevant. However, s 473DC(2) provided that the Authority did not have a duty to get, request or accept, any new information, whether it was requested to do so by a referred applicant or any other person, or in any other circumstances.
Ordinarily, a decision-maker under the Act is not obliged to seek out further information: see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25]-[26] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
There was no evidence before her Honour that the Authority was aware of the 2018 DFAT report, and certainly it had not been asked to exercise its power to request or receive it. Her Honour concluded that the country information in the 2018 DFAT report was not time-limited and referred to volatility in election situations in Bangladesh generally. She found that any failure to locate or refer to the 2018 DFAT report could not be said to be unreasonable and that, in any event, the report did not disclose any significant change in the country situation that the Authority had considered. Accordingly, her Honour dismissed the third ground. I do not see a sufficient basis on which to perceive that any appeal on this ground would have any reasonable prospect of success.
Moreover, in light of the Authority’s findings about the lack of any political profile of the applicant, the 2018 DFAT report was not relevant to the applicant’s circumstances so as to require, based on its findings, any further consideration: SZIAI 259 ALR at 436 [25].
This application
An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent’s vested right to obtain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] (and see also at 539-543 [66] per Kirby J). The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely:
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.
In addition, the criteria for granting leave to appeal are that the applicant must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.
The draft notice of appeal contends that the Authority:
(1)breached s 473CB because it failed to inform or invite the applicant in respect of any claim, or misunderstanding of the claims, that he had made in his application for the visa, and that he had not had a chance to explain his claims further; and
(2)committed a jurisdictional error by failing to take into account the applicant’s claims as required by the Act, had adopted a “hard attitude” in assessing or examining the facts of his case and had not acted on logically probative and relevant materials.
Neither ground is particularised. Those grounds do not appear to have any real prospect of success.
Relevantly, s 473CB imposes an obligation on the Secretary of the Department to give the Authority particular material. It does not impose any obligation on the Authority in the way in which the applicant sought to call the section in aid. Under s 473DB, the Authority was obliged to review the fast track reviewable decision of the delegate without accepting or requesting new information, and without interviewing the applicant, in circumstances where Div 3 of Pt 7AA was an exhaustive statement of the natural justice hearing rule in proceedings for review of a fast track reviewable decision that the Authority undertook (see s 473DA).
Nothing in ground 1 could have any reasonable prospect of success because it seeks to impose on the Authority a function that s 473DB does not require it to perform. Of course, there may be situations in which the Authority becomes aware of new information where it is open to it to refer those matters to an applicant for a visa, but that is not this case.
The second ground appears to be simply a challenge to the Authority’s fact-finding processes and to seek impermissible merits review.
In my opinion, the applicant’s case is flimsy and weak on the merits. There is no reasonable prospect that either of the new grounds he wishes to raise in the draft notice of appeal, or the three original grounds of review that he put before her Honour, would enjoy any real prospect of success if an extension of time were granted. The applicant’s explanation for his delay, given that he was present in Court when her Honour dismissed his application in the Federal Circuit Court, may have been based on his misunderstanding of what occurred, being a litigant in person dealing with a legal proceeding in a foreign language. However, given the weakness of his case on the merits, there would be no purpose in granting an extension of time.
Conclusion
For these reasons, I dismiss the application for an extension of time with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 20 May 2019
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