BJB16 v Minister for Immigration
[2017] FCCA 2367
•10 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJB16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2367 |
| Catchwords: MIGRATION – Application for judicial review – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91W, 473CA, 473DD, 473CDB, 473GB, 473DB |
| Cases cited: South Australia v O’Shea [1987] 163 CLR 378 MZAFZ v Minister for Immigration and Border Protection [2016] 243 FCR 1 |
| Applicant: | BJB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1163 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 4 September 2017 |
| Date of Last Submission: | 4 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms De Ferrari |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1163 of 2016
| BJB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the IAA”) pursuant to the Migration Act 1958 (Cth) (“the Act”).
The applicant is a national of Bangladesh who applied for a protection visa in June 2015. The applicant falls within the category of a “fast-track applicant”. There is no dispute that he made a valid application for a protection visa.
The bases of his application are claims to fear harm on the basis of imputed political opinion (anti-Bangladeshi Government opinion) and his claimed affiliation with the Bangladesh Nationalist Party (BNP). He says that in 2011, as a result of his affiliation with the BNP, he was attacked by members of the Awami League (AL) and left unconscious, waking up later in hospital. He also says that he was the subject of false criminal accusations by members of the AL, and supported this with a document that was said to be a copy of a ‘First Information Report’ issued in August 2011. A further ‘First Information Report’ issued in April 2013 was also produced.
The applicant was invited to an interview by a delegate of the Minister in August 2015. This interview took place in September 2015, and it was at this interview that the applicant provided the second ‘First Information Report’. The delegate observed in the delegate’s reasons that:
The applicant appeared to speak Bengali fluently.
The applicant discussed many issues with the delegate (see court book 153 to 156, 157, 164). The delegate also forwarded one of the ‘First Information Reports’ to the Department’s Document Examination Unit (DEU) which provided inconclusive findings.
Ultimately, the delegate was not satisfied as to the credibility of the applicant’s claims noting that the applicant’s responses were often lacking in detail and inconsistent (see court book 153). Importantly, although the applicant answered many questions, he did not accurately recall the BNP flag’s composition or colour (see court book 154) and gave limited and inaccurate responses about political events of the BNP, which appeared inconsistent with his claimed role as a president of the youth wing of the party (see court book 156). The delegate was not satisfied that the documents provided were bogus such as to give rise to the operation of s.91W of the Act, but nonetheless refused the visa application on the basis of the applicant’s credibility.
The decision was automatically referred to the Immigration Assessment Authority under s.473CA of the Act. This occurred in April 2016. In May 2016, the applicant (who was then assisted, but not represented, by the Human Rights Law Program at the Asylum Seeker Resource Centre) sent a submission to the IAA and enclosed a medical report. On 20 May 2016, the IAA affirmed the decision of the delegate.
The applicant says that the delegate found that the documents the subject of examination were genuine; however, this overstates the findings of the delegate who said (court book 152):
In consideration of the inconclusive findings of the DEU about these documents, and the country information which reflects irregularities within genuinely state issued documents, there is insufficient evidence before me to reasonably form the view that the documents are bogus. I therefore find that the evidence produced is satisfactory, and 91W(2) of the Act does not apply.
A fair reading of the decision indicates that the delegate did not find that they were genuine documents, but rather was not satisfied that s.91W should be considered as engaged such as to form a basis for refusing the applicant a visa.
The medical documents provided to the IAA by the applicant were two reports of a clinical psychologist, Dr Michael King, one dated 11 September 2013 (court book 183) and one dated 3 May 2016 (court book 184). Whilst the dates of these reports differ by a matter of years, both refer to an assessment undertaken of the applicant by Dr King in 2013. No explanation is given as to why Dr King’s first report as to the psychological state of the applicant was not provided to the delegate, given that it was dated prior to the delegate’s decision. The first report says:
Of extreme relevance to his present and ongoing mental health is that this man is presently suffering post-traumatic stress disorder (PTSD) and will require ongoing support.
The more recent medical report from 2016 provides considerably more detail, but makes clear that the applicant was seen for only four sessions around September 2013. Dr King, on the basis of the four sessions, concluded that he presented with indications of PTSD. Whilst his cognitive state, when measured by assessing the number of digits he could recall in forward or reverse order and picture conclusion tasks both indicated scores in the six to eight year old range, Dr King said that:
There are other cognitive tasks which are relatively robust and reflect the general cognitive capacity of the client.
Ultimately, Dr King concluded that the applicant is likely to suffer from longstanding and stable intellectual deficits which will affect his capacity to cope with future or past threatening events and importantly, stating:
Finally, in response to a question put to me, it is entirely likely that any verbal narrative he gives of recent or past events will necessarily be disjointed and likely out of step with known factual steps relating to that narrative but confirmed by external evidence. This mis-match should be interpreted as an inevitable outcome and essentially compatible with the cognitive functionality thus far assessed and attributed to this man.
The IAA exercised its discretion under the Act to accept and consider this additional material. It is clear that the IAA carefully engaged with the report, as is demonstrated by the references in the IAA’s decision, such as at para.17 where the impact upon the applicant’s memory as a result of PTSD was mentioned. Importantly, the IAA said:
21. However even considering the applicant’s remote origin, psychological condition and intellectual capacity, I consider the applicant’s overall responses about BNP ideology to be overly simplistic for someone claiming to have 12 years active membership of the party and six years presidency of the local youth wing. Country information indicates that the BNP was founded on principles of nationalism and that BNP supporters are overwhelmingly Muslim while AL supporters include Hindus and other religious minorities (Martin Griffiths and Mubashar Hasn, “Playing with Fire: Islamism and Politics in Bangladesh”, 14 August 2015, CISEC96CF13171 p9). Contrary to the applicant’s suggestion that the BNP helps people of all religious beliefs, the BNP is openly pro-Islamist and has accused the AL of being in league with forces who want to destroy Islam. In the lead-up to the 2014 election, BNP and JI protestors targeted Hindus, Buddhists and Christians, due to their perceived political affiliations with the AL government (DFAT, “DFAT Country Report Bangladesh 20 October 2014”, 20 October 2014, CIS2F827D91369, p14). The BNP has also been closely connected with Hefezat-e-Islam, a more fundamentalist Islamist group, backing members of the group as parliamentary candidates and expressing support for their demands including introducing the death sentence for blasphemy and criminalising public mingling between the opposite-sex (Foreign Policy, “Cut Down in Their Prime”, 29 May 2015, CXBD6A0DE8851).
22. I accept the applicant’s observations that people of non-Islamic faiths may have voted for the BNP however having considered the country information about the BNP’s foundations and politico-religious agenda, I am not satisfied that it is part of the BNP’s ideology to help people of all religious faiths. I have considered the applicant’s memory problems and cognitive limitations however given he claims he was dedicated to the party for the last 12 years he lived in Bangladesh, I am not satisfied that the applicant’s psychological condition and intellectual capacity is an adequate explanation for his inability to express principle tenets of the BNP.
...
25. Taking the applicant’s personal circumstances including his psychologist’s assessment, I am not satisfied that the applicant’s responses demonstrated a level of knowledge of a long serving BNP member and active youth wing President. I do not accept the applicant was involved with the BNP as claimed and I do not accept he held an influential position in the village and surrounding areas. I accept the applicant’s diagnosed conditions may have affected his memory and lead to a disjointed verbal narrative. However, the issues discussed above do not relate to sequencing of events or the recollection of detailed specifics, but rather, to significant events and issues of claimed personal importance and motivation, and activities to which he claims he dedicated his time. The applicant claims he was an active BNP member for 12 years and that his dedication to the party was noticed and he was made President of the youth wing. However, he showed no conceptual understanding of the BNP’s national objectives, of its structure at any level or how it has been fairing in Bangladeshi politics. Even taking into account the psychologist’s 2013 assessment that the applicant had primary school level cognition and long standing mental deficits, I am not satisfied that his claims in relation to his BNP involvement are credible.
The IAA also considered the documents referred to by the delegate, concluding:
34. At the TPV interview, the delegate asked the applicant how he came to be in possession of original FIRs and the applicant responded that his wife and obtained them, maybe from the police station or court and had sent them to him. The delegate put to the applicant it was difficult to accept he has original versions of FIRs lodged by people accusing him of these crimes. The applicant responded that he was not sure because his wife had collected them. According to DFAT, defendants have the right to be informed promptly and in detail of the charges against them (DFAT, “DFAT Country Report Bangladesh 20 October 2014”, 20 October 2014, CIS2F827D91369 p14) however, I find it implausible that the police or courts would have given the applicant’s wife the original versions of these documents. Given this, the fact that the authorities did not arrest or even question the applicant following the murder charge, the internal inconsistencies in the 2013 FIRs and that authorities have not questioned the applicant’s wife about his whereabouts since the 2013 FIRs were lodged, I give no weight to these FIRs provided in support. I do not accept these accusations were made against the applicant.
Grounds Review
The applicant articulates his grounds in his amended application as follows:
1. The Independent Assessment Authority (IAA) misconstrued its jurisdiction and/or made a decision in excess of jurisdiction and/or made a decision that is Li unreasonable.
Particulars
The IAA failed to recognise that it could not remedy the deficiencies with the hearing that had taken place before the delegate.
The IAA failed to consider whether the preferable course was to remit the decision to the Minister for reconsideration, so that the delegate would be able to afford a real and meaningful hearing to the Applicant.
2. On a second basis, the IAA made a decision in excess of jurisdiction.
Particulars
The IAA has not jurisdiction to make findings with respect to documents being ‘bogus documents’.
The delegate had found the two ‘First Information Reports’ to be genuine.
The IAA’s decision proceeded on bases that were inconsistent with the finding by the delegate as to the nature of those ‘First Information Reports’.
3. The s473GB certificate given to the IAA by the Secretary is invalid, and it vitiated the decision of the IAA.
Ground 1
The applicant commenced argument under this ground by noting that the IAA had concluded that the medical information was information that “may have affected consideration by the delegate”, in accordance with s.473DD(b) a point that is not in dispute.
The applicant developed the argument that the delegate was effectively hampered in properly undertaking the delegate’s task as the delegate was unaware of the limitations under which the applicant operates and presents himself as a result of his psychological condition. The applicant argued by way of analogy with interpreter cases, that whilst the delegate was unaware of these matters, they nonetheless resulted in the applicant not receiving a meaningful hearing before the delegate.
The applicant also argued that once the IAA had become aware of these matters it was not open to the IAA to review the decision on the papers (reviewing the evidence before the delegate, the delegate’s decision, and the medical reports), but rather the IAA was bound to consider, and inevitably conclude, that a further hearing must take place in person with the applicant in light of the medical material.
The third way in which the applicant articulated the argument under this ground was to look at the process provided for in the Act as a whole and to conclude that, when taken in its entirety, the process must provide for procedural fairness as would be required at common law, relying upon South Australia v O’Shea [1987] 163 CLR 378 at 389 and Haoucher v Minister [1990] 169 CLR 648.
In this case, I am not persuaded that the IAA failed to turn its mind to the impact that the medical material may have had upon the decision of the delegate. The nature of the medical material does not show that the applicant was unable to receive a real hearing before the delegate, nor is this borne out by the reasons of the delegate that show detailed interactions with the applicant. Most importantly, the applicant has not led evidence from a relevant professional before this Court to show that he was incapable of having a real and meaningful hearing, in the sense discussed in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 128 FCR 553 before the delegate. In these circumstances, the relevant considerations for the IAA were whether or not they could proceed to deal with the matter on the papers or should consider hearing the applicant in person or remit the matter generally to the delegate (if the latter were available).
It is clear that the IAA did proceed to carefully consider the nature of the evidence, effectively concluding that, whilst Dr King’s report might explain some but not all of the problems in the applicant’s evidence, the IAA decided to affirm the decision of the delegate based on the written material before it. It appears to me that this outcome was open to the IAA, particularly given the operation of Pt.7AA of the Act, which makes clear that the provisions of Pt.7AA contain the entirety of the rules of procedural fairness that operate with respect to the IAA’s decision making: See generally, DBE16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 487. As a result, I am not persuaded that the applicant has established a ground for review in either the sense of a requirement that the applicant have a further oral hearing in light of the medical evidence, nor in the sense of a claim that the applicant never received a real and meaningful hearing before the delegate.
With respect to the last of the matters raised by the applicant, I am not persuaded that South Australia v O’Shea provides great assistance in the context of these proceedings. South Australia v O’Shea concerns a process taken in stages, whereas the process in this case involved a hearing by the delegate which leads to a decision, and a review by the IAA. Specific statutory rules are set out for each function. To adopt the applicant’s interpretation based upon South Australia v O’Shea would, it seems to me, effectively override the legislature’s obvious intention to have a separate and limited process before the IAA. It appears to me that the limit to which this argument could reach is that as described in DZU16 v Minister for Immigration & Anor [2017] FCCA 851 (per Judge Driver) and CRY16 v Minister for Immigration& Anor [2017] FCCA 1549.
In the circumstances, I am not persuaded that the applicant has established this ground.
Ground 2
The applicant says that the IAA would have no power to conclude that the documents were bogus documents within the meaning of s.91W. Not surprisingly, this is disputed by counsel for the Minister. For the present purposes, it is not necessary to determine this question as the IAA did not conclude that the documents were “bogus” documents within the meaning the section. Rather, the Tribunal, for the reasons that it set out, did not rely upon these documents, nor find them persuasive. It appears to me that it was open to the Tribunal to reach the conclusions that it did with respect to the documents. No issue of procedural fairness arises in this regard, as it clear from the delegate’s decision that questions as to the authenticity and reliability of these documents were raised with the applicant in the hearing before the delegate.
In circumstances where the issues were raised before the delegate, the IAA considered the documents and provided proper reasons for the lack of reliance upon those documents by the IAA. I see no error in the approach of the IAA in reviewing the delegate’s decision. I am not persuaded that the delegate made a decision that effectively rejected these documents as bogus, rather that the delegate’s decision was limited to one not to conclude that the documents engaged s.91W.
In the circumstances, I therefore find that the applicant has not established this ground for review.
Ground 3
This ground raises an interesting issue in light of the recent cases concerning certificates issued by the Minister under the Act effectively claiming Crown immunity. In this case, limited material has been placed before the court with respect to the certificate issues. It appears from the court book that a bundle of material was sent by the delegate to the IAA, as is required by s.473CDB. That section imposes an obligation upon the secretary to forward relevant material to the IAA. In this case, some of those materials were accompanied by a certificate under s.473GB, which provides as follows:
(1) This section applies to a document or information if:
(a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:
(a) must notify the Authority in writing that this section applies in relation to the document or information; and
(b) may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4) If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5) The Minister may issue a written certificate for the purposes of subsection (1).
The certificate in this case appears to be invalid on its face: see MZAFZ v Minister for Immigration and Border Protection [2016] 243 FCR 1. The issue that arises is what effect an invalid certificate of this type would have in the context of these particular proceedings.
The effect of s.473GB is that the IAA still had regard to the documents covered by the certificate. There is nothing to suggest that these documents were not relevant to an issue before the IAA (being documents given the same reference number as documents said to come from the document examination unit), nor that the issue to which the evidence related was not raised with the applicant before the delegate. The matter is discussed in the delegate’s decision at court book 151, where the delegate says:
I have concerns regarding the methods used to construct the documents presented and assess them not to be consistent with officially issued documents. For instance all of the submitted original documents possess no substrate security and have a high base fluorescent reaction when exposed to ultra-violet light. I also noted inconsistencies in the names stated on the birth certificate translations (…).
At PB interview (17 September 2015) the applicant was invited to provide a reasonable explanation as to the areas of concern identified in the documents submitted. In response, the applicant maintained that the documents submitted were genuine.
Thus, it appears that the documents were not the subject of a certificate before the delegate, and that the issues to which they relate were canvassed with the applicant.
The question that then arises is what effect, if any, the certificate had upon the applicant’s rights before the IAA. The IAA had no obligation to provide material to the applicant, nor did it do so. The applicant was given an opportunity to provide material to the IAA, which the IAA accepted in accordance with the relevant provisions. It is difficult to see how the process would have been different whether there was a certificate issued under s.473GB in this case or not. Given the operation of ss.473GB and 473DB, it would not seem to make any difference whether a certificate had issued or not, save in the unusual case where the IAA concluded that it was appropriate to seek further information from the applicant, but did not proceed to do so as a result of the certificate. There is nothing in the material to indicate such a course came to pass, nor has the applicant issued subpoenas or sought evidence as to the detail of the material provided to the IAA pursuant to the certificate.
In these circumstances, I am not persuaded that it is a case where, even if the certificate under s.473GB is invalid, it would be appropriate to grant the applicant relief. In these circumstances, I am not persuaded that this ground has been made out.
Conclusion
As I am not persuaded that the applicant has established a ground for judicial review, I therefore dismiss the application and make orders dismissing the application and for costs in the scale amount.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 10 October 2017
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