BND18 v Minister for Immigration - [2019] FCCA 2218

FEDERAL CIRCUIT COURT OF AUSTRALIA

BND18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2218

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant disbelieved in critical respects – whether the review was procedurally unfair, whether the Authority made factual errors that were material, incorrectly rejected new information or misapplied the complementary protection criterion considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 65, 473BA, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 499

Cases cited:

AQU17 v Minister for Immigration [2018] FCAFC 111

ARG15 v Minister for Immigration (2016) 250 FCR 109

AUH17 v Minister for Immigration [2018] FCA 388

BDI17 v Minister for Immigration & Anor [2018] FCCA 2162

BHX18 v Minister for Home Affairs & Anor [2018] FCCA 3498

BMB16 v Minister for Immigration (2017) 253 FCR 448

BNH16 v Minister for Immigration [2017] FCAFC 109

BRA16 v Minister for Immigration [2018] FCA 127

CCQ17 v Minister for Immigration [2018] FCA 1641

CDZ16 v Minister for Immigration [2017] FCA 967

CHF16 v Minister for Immigration [2017] FCAFC 192

CQG15 v Minister for Immigration (2016) 253 FCR 496

CSF17 v Minister for Home Affairs & Anor [2018] FCCA 2611

DAO16 v Minister for Immigration (2018) 258 FCR 175

DBE16 v Minister for Immigration [2017] FCA 942

DGZ16 v Minister for Immigration [2018] FCAFC 12

DLB17 v Minister for Home Affairs [2018] FCAFC 230

DYS16 v Minister for Immigration [2018] FCAFC 33

Gill v Minister for Immigration [2017] FCAFC 51

Minister for Immigration v BBS16 (2017) 158 ALD 198; [2017] FCAFC 176

Minister for Immigration v CQW17 [2018] FCAFC 110

Minister for Immigration v CRY16 (2017) 253 FCR 475

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v SZMTA (2019) 93 ALJR 252

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

Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1, (2000) 168 ALR 407

SZBEL v Minister for Immigration (2006) 228 CLR 152

Selvadurai v Minister for Immigration (1994) 34 ALD 347

Applicant:

BND18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 817 of 2018

Judgment of:

Judge Driver

Hearing date:	13 August 2019
Date of last submission:	21 August 2019

Delivered at:

Sydney

Delivered on:

13 September 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms R Graycar

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application as amended on 14 December 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 817 of 2018

BND18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 March 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from submissions filed on behalf of the Minister on 6 August 2019.
The applicant, a citizen of Bangladesh, arrived in Australia at Christmas Island on 21 February 2013 as an unauthorised maritime arrival. On 1 April 2016 he was advised that the Minister had lifted the bar otherwise imposed by s.46A of the Migration Act 1958 (Cth) (Migration Act) which prevented a person who arrived as an unauthorised maritime arrival from applying for a visa.[1] He lodged an application for a protection visa with the assistance of a legal representative on 9 August 2016.[2]
[1] Court Book (CB) 18
[2] see CB 27ff
The applicant’s claims for protection were made in a statutory declaration attached to his visa application.[3] They can be summarised as follows:
[3] and see also summaries by the delegate at CB 130-131 and by the Authority at CB 221-222 (at [12])
a)the applicant and his family were all supporters of the Bangladesh National Party (BNP);
b)his brother, AR, was a BNP member and was involved in the local BNP branch;
c)the applicant attended BNP processions, activities and sporting events as a child and student and in 2001 became a member of the local BNP branch;
d)in 2005, the applicant’s brother gained a government contract from his political contacts with the then BNP Government, to undertake construction work in local schools. The applicant assisted by overseeing the construction work for five schools;
e)following the 2008 elections the two stores owned by the applicant’s family were ransacked by the Awami League (AL) and Bangladesh Chattra League (BCL) supporters and two of his brothers were beaten;
f)the AL had a vendetta against the applicant because he was a known face who had been doing BNP government work. In January 2011, AL supporters went to his brothers, AR and MA, asking about him. The applicant fled his village, moving around to different villages before returning to his village for approximately one year;
g)in June 2011, AR and MA were taken to an AL office, asked about the applicant’s whereabouts, threatened and beaten;
h)on 17 December 2011, about 60 or 70 AL and BCL supporters went to the applicant’s family home, forced his wife and children into the yard and burnt the house down;
i)in September 2012, when leaving work in Chittagong, the applicant was approached by a masked man who attempted unsuccessfully to force the applicant into a van;
j)in early 2017, the applicant’s nephew was beaten when he returned to the applicant’s village in an attempt to retrieve the applicant’s birth certificate;
k)in May 2017, the applicant’s daughter was kidnapped and later released only after his brother, who lives in Canada, paid a ransom;
l)the applicant continued to attend BNP meetings in Australia and was attacked and robbed in 2014 when returning home from a meeting; and
m)he also fears harm as a failed asylum seeker due to his illegal departure.
On 19 July 2017 the applicant was requested to attend an interview on 2 August 2017.[4] Following that interview, his legal representative provided a post interview submission.[5] On 3 November 2017, the delegate refused the Safe Haven Enterprise Visa (SHEV) application[6] and referred the matter to the Authority on 8 November 2017.[7] The Authority affirmed the delegate’s decision on 2 March 2018.[8]

The Authority decision

[4] CB 110

[5] CB 117ff

[6] see decision record at CB 129ff

[7] see CB 143

[8] CB 218ff

New information

The Authority had regard to the material referred to it by the Secretary under s.473CB of the Migration Act, and noted that it had also received several pieces of new information from the applicant and his representative.
In relation to a submission from the applicant’s representative, the Authority had regard to it, to the extent that it engaged in argument with the delegate’s decision and referred to country information that had been before the delegate.[9] The submissions also referred to country information that was not before the delegate, which the Authority found to be new information. The Authority observed that the new information was either undated or dated prior to the delegate’s decision. The Authority noted that the applicant’s representative had not satisfied the Authority that it could not have been provided prior to the delegate’s decision nor that it was credible personal information which, had it been known may have affected the consideration of the applicant’s claims. The Authority was also not satisfied that there were exceptional circumstances that justified considering the new information.[10]
[9] at [4]
[10] at [11]
The applicant also sought to have the Authority consider a statutory declaration which contained information that was not before the delegate, specifically concerning:
a)the manner in which his brother had acquired the government construction contract;
b)that the contract made his family wealthy, resulting in them being targeted;
c)that the applicant thought it was an AL member who attacked him in Australia in 2014; and
d)further particulars about the extent of his involvement in BNP activities in Australia.
The Authority considered that the delegate did not consider the brother’s position in the BNP nor did it draw any links between the attack in Australia and the applicant’s BNP involvement. Given that the delegate did not request further information about this, the Authority considered that the statutory declaration provided clarifying details that could not have been provided prior to the delegate’s decision and there were exceptional circumstances for considering the information.[11] Accordingly, it considered the statutory declaration.
[11] at [7]-[8]
The Authority was provided with four photos that the applicant claimed depicted a BNP social function that he attended after the delegate’s decision. The Authority noted that the photos did not bear any date marking, the applicant was not shown in the photos, and the people in them were not clearly identified as BNP supporters. The Authority accepted that the photos could not have been provided to the delegate however, considered that as they were of very little probative value and did not corroborate the applicant’s claims, it was not satisfied that there were exceptional circumstances to consider the information.[12]
[12] at [9]
The applicant also provided an undated letter from NSW Police that the applicant alleged supported his claim to have been attacked. Given that the applicant had mentioned in the delegate interview that he had documents confirming the attack but never provided them to the delegate, the Authority was not satisfied that the document could not have been provided prior to the delegate’s decision. Further, given that the documents did not contain any details about the incident that took place, the Authority was not satisfied that the report corroborated the assault or affected its consideration of the applicant’s claims. Nor was it satisfied there were exceptional circumstances for considering the document.[13]
[13] at [10]

The Authority’s consideration of the applicant’s claims for protection

The Authority referred to the applicant’s claims about his and his family’s involvement in the BNP at [14]-[17], and referred to a document stating that he was a “general” member of the BNP.[14] The Authority accepted that the applicant was interested in the BNP due to his brother’s involvement with the party; that he later became a local member himself; that he may have assisted in organising local BNP activities when the BNP was in power, and that he was involved in low level campaign activities prior to the 2008 election.[15] The Authority also accepted that the applicant’s brother used his political influence to secure a lucrative government contract and that the applicant may have assisted with and benefited from that contract.[16]
[14] at [18]
[15] at [18], [20]
[16] at [20]
However, the Authority considered that the applicant had exaggerated the level and extent of his involvement with BNP activities, in particular with regard to the government contract, given that his evidence had evolved over time, was inconsistent with the stated employment history in his visa application, and the applicant had given significantly different accounts of the timeline of events.[17] On this basis, the Authority accepted that the applicant had only low level BNP involvement and was not satisfied that the applicant supervised the contract completion or that the contract work heightened his political profile.[18]
[17] at [19]
[18] at [20]
Having considered country information, the Authority accepted the applicant’s claim that after the 2008 election his family’s stores were ransacked due to his brother RA’s BNP profile.[19] However, the Authority identified that there were internal inconsistencies in his account of the ransacking. The applicant had given inconsistent accounts of the events at the interview before the delegate, where he claimed that two of his brothers (AR and MA) were beaten, and in his visa application, where the applicant had claimed to have been visiting his brother MA in Barisal district at the time of the incident. On that basis the Authority found that the applicant had embellished the claim and it was not satisfied that his brothers were beaten by the AL or BCL.[20]
[19] at [23]
[20] at [22]-[23]
The Authority considered a 2014 Department of Foreign Affairs and Trade (DFAT) report which indicated that supporters or members of political parties in Bangladesh were not living in fear of violence on a day-to-day basis due to their political affiliations, though members with a higher profile faced an increased risk of being targeted.[21] As the Authority did not consider that the applicant was “more than a low profile member”, the Authority did not consider it plausible that two years after the election, the AL or BCL would begin to take an interest in the applicant or would pursue a vendetta against him for work undertaken on a contract three years earlier.[22] The Authority did not consider that there was any indication or evidence of activities that would invite the interest of AL or BCL and was also not satisfied that the applicant had gone into hiding in January 2011, as he claimed.[23]
[21] at [26]
[22] at [27]
[23] at [27]
The Authority identified a significant discrepancy in the applicant’s evidence regarding the beating of his brothers, which raised concerns about the credibility of his claims. That is, in the SHEV interview the applicant claimed that in December 2011 when his house was burnt down his brothers were at the family shops, which contradicted his claim in his visa application that his brothers went into hiding after being attacked in June 2011. Accordingly, the Authority did not accept that his brothers were beaten in either January or June 2011 by the AL or went into hiding to avoid further harm.[24]
[24] at [28]
The Authority considered that the applicant had also given inconsistent evidence in relation to the incident where he claimed that his house had been burned down, about his brothers’ whereabouts at the time and about the claimed stated intention of the AL members and the manner in which they set fire to the house. Based on these inconsistencies, the findings that the applicant’s brothers were not in hiding and that the applicant was not of any interest to the AL and BCL, the Authority found that although the applicant’s family home may have burned down, it was not satisfied that the AL or BCL were responsible for it.[25]
[25] at [29]
The Authority did not accept the applicant’s claims regarding the attempted kidnapping in Chittagong, given that he had worked in the area for nine months prior to the incident and had not been targeted in the three years before that when he remained in his village.[26]
[26] at [30]
The Authority considered the applicant’s claim regarding his nephew being beaten in 2017 by the AL and BCL on return to the village to be implausible. This was because the Authority did not accept that the applicant was targeted by these groups; was not satisfied that the AL and BCL would be interested in the applicant’s family some seven years after they left the village and further, because this claim was inconsistent with his claims during the interview that his papers were lost in the house fire and he had no remaining family members in the village to obtain the documents.[27]
[27] at [31]
The Authority accepted that the applicant’s daughter may have been abducted but was not satisfied that it was due to the applicant’s support of the BNP. This finding was based on the Authority’s anterior finding that the applicant was not of any interest to the AL or the BCL at the time of his departure and its consideration that his family were living in a different village at the time of the abduction and had never been targeted previously.[28]
[28] at [32]
The Authority accepted that the applicant had some ongoing involvement with the BNP in Australia, ie, that he may occasionally attend meetings. The Authority also accepted that he may have been attacked on his way home from a BNP meeting.[29] However, based on the discrepancies in the applicant’s evidence about the incident, including inconsistencies regarding where the applicant had been prior to the attack, whether or not he had previously met the attackers and what occurred after the incident, the Authority was not satisfied that he was attacked by AL members or that he was targeted in Australia due to his political affiliations.[30]
[29] at [33]-[34]
[30] at [35]-[37]
While the Authority found that he may continue to support the BNP if he returned to Bangladesh, it was not satisfied that he would be politically active on return, or that his support “would extend beyond merely supporting the party and occasionally attending informal meetings”.[31]
[31] at [43]
The Authority relied on country information and the findings outlined above to support its conclusion that the applicant would not face a real chance of any harm as a result of any past or future BNP support.[32] The Authority was also not satisfied that there was a real chance that the applicant would face any harm on return to Bangladesh as an illegal departee or a returning failed asylum seeker.[33]
[32] at [39]-[43]
[33] at [44]-[47]
On the basis of the above findings, the Authority was not satisfied that the applicant was a person to whom Australia owed protection obligations under s.36(2)(a).[34] The Authority then considered the complementary protection criterion under s.36(2)(aa) and concluded that on the basis of his political affiliations with the BNP, there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia, there was a real risk that the applicant would suffer significant harm.[35]
[34] at [48]
[35] at [49]- [52]

The current proceedings

These proceedings began with a show cause application filed on 26 March 2018. The applicant now relies upon an amended application filed on 14 December 2018. The applicant is self represented, but appears to have obtained some assistance in preparing his applications. The grounds in the amended application are:
Grounds of application
The applicant claims that he was denied procedural fairness and natural justice when IAA made decision on limited information - material referred by Secretary Under s473 of the Migration Act. The IAA made a jurisdictional error when it made decision without giving any chance of hearing to expand the arguments and clear some misunderstanding.
Particulars: The IAA failed to inform or invite the applicant to give response or oral evidence with regards to any claim or any misunderstanding of the claims forwarded in the Primary application for the protection visa.
The Delegate and the IAA totally discarded the information given by the Applicant's representative in a form of statutory declaration (Dated 28 November 2017) (Court Book P p 202-2009 ) without giving any reasonable reasons to discard the current information about the [atrocities] committed on the BNP supporters and leaders by the Awami League Government in Bangladesh .. The delegate did not raise any concerns regarding the applicant's claim or put any issues of concern to the applicant at the SHEV interview.
The IAA made a jurisdictional error when it failed to hold that the Department or Immigration mistook or [construed] the facts and assessed the application based on the irrelevant and old information supplied by the DFAT Country Report Bangladesh.
Particulars
The IAA made decision mainly based on the [SHEV] interview. It totally ignored the issues raised in his Statutory Declaration made on 28 November 2017.
(Court Book pp 2002-2009)
The applicant's representative raised the issues of interpreting and understanding the issues raised at [SHEV] interview. The Department failed to understand the circumstances in which the applicant arrived in Australia. At the time of arrival interview the applicant's physical and mental condition was not competent so that he could give correct information about his identity and other information relevant to his claim for the protection visa. The Department and the IAA both did not give any consideration to the difficulties a refugee face when they arrive by boat.
Applicant claims it contravene article 31 of the Refugee Convention and required that the Department to consider its obligation in good faith.
The applicant claims that he has well-founded fear of persecution because of having membership of a particular social group (BNP). The applicant claims that the test of fear of persecution applies whether the victim has low or high profile.
The IAA failed to hold that the Department made a error in assessment of the application in the beginning it raised several questions about applicant's membership of BNP party. (Court Book p224) At col.19 of the decision, the IAA said :
"Despite the applicant's claimed difficulty in understanding interpreter and his evident distress during the [SHEV] interview the applicant has consistently claimed that his brother was involved in the BNP. The applicant also claimed in the entry interview that he was a BNP supporter although he did not raise his own BNP membership or his involvement in BNP activities at the local level until the lodgement of his application. Never the less, after consideration of the applicant's responses at the [SHEV] interview I accept that he was interested in the BNP due to his brother’s BNP membership and involvement. I [also] accept that the applicant met other BNP [members] through his brother who encouraged the applicant’s interest and applicant became a local member of the BNP after the BNP came in Power in 2001”
The applicant claims that he is a [truthful] witness and whatever the information supplied by him was correct. The inconsistencies arose because of [misunderstandings] of the facts forwarded during first arrival and Departmental formal interview for the protection visa.
During the [SHEV] interview the applicant was confused and could not match the time frame of significant incidents. Because of that the significant discrepancies in applicant’s was noted by the IAA. The applicant claims, he was not prepared and aware of specially designed questions by the Department and did not respond [accordingly]. He was denied procedural fairness when the Department did not give a list of questions before interview. The questions were designed to confuse applicant.
The applicant's family home shop was destroyed. The applicant wanted to say that he had shop in his family home. When the Awami League workers broke into house and forced his family out before burning the house down. His house was destroyed because of the applicant and his brother's involvement with the BNP. The IAA did not accept as plausible. The IAA's adopted unreasonable method for assessment of the applicant's credibility. (Court Book p226 Col 26)
(errors in original)

I have before me as evidence the court book filed on 18 May 2018. I also received as an exhibit[36] the DFAT Country Information Report on Bangladesh published on 2 February 2018.
[36] Exhibit R1

Consideration

In his oral submissions, the applicant asserted that the Authority made material factual errors in its decision. He asserted, first, that the Authority had erred in finding that he had claimed to be living at home for three years prior to his departure for Australia. This appears to be a reference to [30] of the Authority’s reasons[37] where it stated:
Nor am I satisfied that the applicant was targeted in Dewanhat, Chittagong because of his or his brother’s political profile. The applicant lived and worked in the area for over 9 months prior to the incident. If the applicant was of interest to the AL or BCL they had sufficient opportunity during the three years he remained in his village to target him but did not do so. I consider it implausible they would seek him out in Chittagong and attempt to kidnap him and kill him.
[37] CB 227
In my view, the inference drawn by the Authority in that paragraph was available to it, having regard to the terms of the applicant’s claims set out at [18]-[21] [38] of his statutory declaration.
[38] CB 80-81
Secondly, the applicant asserted that the Authority erred in its finding concerning an attack upon him in Australia, which he claimed before me was not a robbery as no property was stolen. This appears to be a reference to the Authority’s reasons at [33]-[37]. In particular, at [35] the Authority stated:[39]
At the SHEV interview the applicant stated that he had left a BNP meeting at the local library when he was attacked by three people asking directions and robbed of his mobile phone and wallet. He did not indicate that he recognised his assailants or had met them before. However in the statutory declaration he claims to have been attacked by two people after he left a local restaurant where there had been a BNP meeting. Although he could not see the people who attacked him as it was dark he was very sure it was AL members he had met earlier that evening at the restaurant who he recognised as being from the Nangalkot area where the applicant was involved with the BNP. He also stated that he was unable to identify his attackers to the police.
[39] CB 228
In my view, the Authority’s conclusion was open to it in the light of the applicant’s claims reproduced at CB 208 and the record of the SHEV interview. No error on the part of the Authority is apparent.
Thirdly, the applicant asserted that the Authority erred in making findings concerning his brother. This was an issue raised by the applicant at [19][40] of his claims and dealt with by the Authority at [23].[41] That paragraph should also be read in the context of [15].[42] No error on the part of the Authority is apparent.
[40] CB 80
[41] CB 225
[42] CB 223
As to the grounds of review advanced, four grounds are discernible, which the Minister summarises in the following terms:
The applicant was denied procedural fairness and natural justice by the IAA when it made its “decision on limited information: material referred by the Secretary under s 473 of the Act”. This is particularised by the claim that he did not get a chance to expand his claims; that the information in the statutory declaration of 28 November 2017 was “totally discarded”, and that the delegate did not raise any issues of concern with him at the SHEV interview.
By his second ground, he contends that “the IAA 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 country report Bangladesh”. However, this is particularised again by the claim that the IAA “totally ignored” the issues raised in the statutory declaration of 28 November 2017, and also raises issues about the IAA’s treatment of inconsistencies in the applicant’s evidence and attacks on the factual finding of the IAA, and in particular, on its assessment of the applicant’s credibility.
The applicant contends that not asking for new information of harassment or torture by the Awami League is also a jurisdictional error, based on “ignoring relevant issues and making decision on irrelevant issues”. The particulars to this ground repeat the concern identified in the first ground, that is, he claims he did not “get chance to expand the claim at the stage of his visa application at IAA”. They also repeat his identified concerns about the assessment of his credibility.
By the final ground, the IAA is said to have “undermined substantial grounds for believing …”, ie misinterpreted or misapplied s 36(2)(aa) which provides the criteria for the grant of a protection visa based on complementary protection. This is particularised by reference to “fears of persecution based on his support to BNP”. It is also claimed that the IAA did not give “real reasons” in relation to s 36(2)(aa).
I accept the Minister’s submissions in relation to the first and third of the above grounds.
In relation to both Grounds 1 and 3 (which, essentially contend that he did not get a chance to expand his claims before the Authority), these grounds fail to take account of the particular nature of a review conducted under Part 7AA of the Migration Act. Part 7AA provides for a limited review of “fast track decisions”[43] for the cohort of people described in that section. It is thus a different (and more limited) process of review from the forms of review available pursuant to Parts 5 and 7 of the Migration Act respectively.
[43] see s.473BA
The Authority’s role has been described as follows by the High Court in Plaintiff M174/2016 v Minister for Immigration[44] where the plurality (Gageler, Keane and Nettle JJ) stated at [17] that the Authority:
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. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.
[44] (2018) 92 ALJR 481
Justice Gordon also stated in M174 at [85] that the review by the Authority “is a hearing de novo on the material provided to the Authority under s.473CB. The Authority’s task is to consider the application … and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met”. To similar effect are the observations of Edelman J, who referred to the Authority review as “a de novo review by which the Authority is required to reach its own conclusion”.[45]
[45] at [95], and see also Minister for Immigration v CRY16 (2017) 253 FCR 475 at [39], referring to BMB16 v Minister for Immigration (2017) 253 FCR 448; see also DGZ16 v Minister for Immigration [2018] FCAFC 12 at [72] and [76]
More particularly, the Authority is not bound by any findings of the delegate, and there is no obligation to inform an applicant that the Authority may take a different approach to that taken by the delegate, as the Full Federal Court put it in DGZ16 at [72]:
… Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate.
Some key elements of the statutory framework governing Part 7AA, as they affect the claims made by the applicant, are as follows:
a)by s.473DA, Division 3 of Part 7AA, with ss.473GA and 473GB “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”. A consequence of this is that there is no procedural fairness obligation to put dispositive matters to an applicant or to alert an applicant that a matter might be decided on a different basis from how the matter was determined by the delegate and “the principles in SZBEL v Minister for Immigration[46] do not apply to reviews under Pt 7AA of the Migration Act”;[47]
[46] (2006) 228 CLR 152
[47] see DBE16 v Minister for Immigration [2017] FCA 942 at [59] per Barker J (and see also DGZ16 at [72], [75]-[76])
b)pursuant to s.473DB, the Authority must review a fast track decision referred to it “on the papers”, by considering the review material (see s.473CB) and “without accepting or requesting new information and without interviewing the referred applicant”. Unlike a review conducted under either Part 5 or Part 7, there is (subject to s.473DC) no opportunity for an applicant to appear before the Authority for an interview (though the Authority will generally have a recording of the interview that was conducted by the delegate when considering whether to grant the visa);
c)section 473DC provides the Authority with a statutory discretion to “get new information”. This is defined in s.473DC(1) as information that was not before the Minister when the decision was made and which the Authority considers may be relevant.[48] However, s.473DC(2) makes it clear that the Authority “does not have a duty to get, request or accept any new information whether the Authority is requested to do so by a referred applicant …”. Section 473DC(3) provides that the Authority may receive new information. A failure to consider exercising that discretionary power may be found to be legally unreasonable;[49]
[48] see, on the question of whether the information may be relevant, the decision of Logan J in CDZ16 v Minister for Immigration [2017] FCA 967 at [10]
[49] see CCQ17 v Minister for Immigration [2018] FCA 1641 at [38]-[49] (per Thawley J)
d)section 473DD prohibits the Authority from considering any new information (whether it was obtained by the Authority pursuant to s.473DC or otherwise) other than in exceptional circumstances (s.473DD(a)). Even if the Authority finds that there are exceptional circumstances, that material may only be considered if the applicant for review additionally satisfies the Authority that it meets the criteria in either s.473DD(b)(i) or (ii);[50]
[50] see M174 at [29]-[31]
e)the requirements in subsections (a) and (b) of s.473DD are cumulative;[51] and
[51] see M174 at [31] per Gageler, Keane and Nettle JJ, [78] per Gordon, [100] per Edelman J (and see also Minister for Immigration v BBS16 (2017) 158 ALD 198; [2017] FCAFC 176 at [102]; CHF16 v Minister for Immigration [2017] FCAFC 192 at [17]-[18]; DYS16 v Minister for Immigration [2018] FCAFC 33 at [33]; Minister for Immigration v CQW17 [2018] FCAFC 110 at [36] and AQU17 v Minister for Immigration [2018] FCAFC 111 at [13]
f)as the High Court also observed in M174, referring to s.473DD(a) at [30], “[q]uite what will amount to exceptional circumstances is inherently incapable of exhaustive statement”. An exceptional circumstance is one which, while it “need not be unique, or unprecedented, or very rare”, must not be “one that is regularly, or routinely, or normally encountered”.[52] The application of that criterion will, inevitably, involve an evaluative judgment by the Authority.[53] Every case will depend upon its own facts, as the Full Federal Court stated in AQU17 at [13]-[14]:
[52] at [30]
[53] M174 at [75]
In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case. …
Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case.
g)there is no prescribed manner in which an assessment of whether to accept new information must be undertaken: as Mortimer J pointed out in AUH17 v Minister for Immigration[54] at [32], consistently with the Full Federal Court decision in AQU17, each case must be considered on its merits. Nor is it necessary for the Authority in every case to consider both subsections (a) and (b), given that the requirements are cumulative.[55] It follows, as this Court has found in CSF17 v Minister for Home Affairs & Anor[56] at [30], applying BRA16 at [26], that:
Because the requirements of s 473DD are cumulative, even if one of the findings is affected by error, so long as the other finding is not, then whatever error the Authority might have made could not be jurisdictional.
h)there is a key relevant difference between subsections (a) and (b) in s.473DD. Subsection (a) applies both to situations where the Authority seeks out new information, and to those, such as this case, where the new information is sought to be provided by an applicant. In relation to subsection (a), the Authority must not consider the new information unless it is satisfied that there are exceptional circumstances to justify considering it. By contrast, subsection (b) applies only “in relation to any new information given, or proposed to be given, to the Authority by the referred applicant”. That paragraph requires that the applicant “satisfies the Authority” in relation to either s.473DD(b)(i) or (ii), one of which must apply, in addition to the Authority also finding that there are “exceptional circumstances”[57] for considering the information. As the Full Federal Court explained in AQU17 at [17]:
Nor, contrary to the appellant’s submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant’s case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant’s case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant’s personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of “exceptional circumstances”.
i)that is, while there is no formal onus of proof in the context of a review pursuant to Part 7AA, s.473DD(b) requires the applicant to satisfy the Authority of at least one of the matters in that paragraph.[58]
[54] [2018] FCA 388
[55] cf M174 at [31]; [78] and [100] and see BRA16 v Minister for Immigration [2018] FCA 127 at [26], AQU17 at [14]; DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22]
[56] [2018] FCCA 2611
[57] cf s.473DD(a)
[58] and see also the decision in AUH17 at [33]
Further, in relation to the first ground, the applicant’s claim is factually incorrect. The Authority did not “totally discard” the information in the statutory declaration of 28 November 2017. On the contrary, the Authority determined that there were exceptional circumstances that justified considering it.[59] As explained at [38(c)] above, there was no obligation on the Authority to seek out further information from the applicant, and thus there can have been no denial of procedural fairness. In relation to any concern about the delegate’s decision, as the High Court noted in M174 at [46], the Authority decision will not generally be vitiated by an error of the delegate: the Authority’s “central task of considering the application for a protection visa afresh must render moot any failure to consider information that may have occurred on the part of the Minister or delegate in making the decision under review.”
[59] see CB 219-220 [6]-[8]
As stated at [33] above, I also accept the Minister’s submissions in relation to the applicant’s third ground.
By Ground 3 the applicant contends that the Authority ought to have sought out new information about harassment or torture by the AL. However, the particulars provided do not go beyond what was said in relation to Ground 1, that is, that the applicant was entitled to a further opportunity to put his claims. I accept what was put above about the limits imposed by Part 7AA on an applicant’s right to put new information or to attend an interview with the Authority.
A further difficulty with this ground is that the Authority found that, whatever might be the risks faced from the AL by people with significant BNP profiles, the applicant himself was a low level or ordinary member and his limited role in the BNP would therefore not put him at risk. I also accept what was put by the Minister in relation to the assessment of credibility.
The final ground raised by the applicant (Ground 4) rises no higher than an attempt impermissibly to seek to have this Court undertake merits review. While the ground appears to contend that the Authority erred in its response to s.36(2)(aa) the particulars merely repeat parts of the applicant’s factual claims to fear being subjected to cruel or inhuman treatment, but those fears are said to be based on his support of the BNP. In light of the findings of the Authority, which were open to it, this ground cannot succeed.
In relation to the contention that the Authority did not give “real reasons” for not applying s.36(2)(aa), while the reasons of the Authority are brief, they are clearly referable to the findings made about the limited extent of the applicant’s BNP activity and profile.[60] Thus there is no basis for any finding that the reasons are inadequate such as to give rise to jurisdictional error.
[60] see [51]

Second ground – Authority’s use of country information

The applicant’s second ground appears to take issue with the country information relied on by the Authority in its decision. However beyond that assertion in the ground, the particulars do not elaborate on or elucidate the nature of any claimed error, instead asserting that the Authority erred in the assessment of the applicant’s credibility.
It is well established that generally speaking, credibility findings are a matter “par excellence” for a fact finder.[61] In a number of decisions of the Full Federal Court,[62] it has been held that in limited circumstances, errors in fact finding, including specifically errors that impact upon credibility findings, can give rise to jurisdictional error, albeit what must be shown is “extreme illogicality”.[63]
[61] cf Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1, (2000) 168 ALR 407 at [67] per McHugh J
[62] see for example ARG15 v Minister for Immigration (2016) 250 FCR 109 at [83]; CQG15 v Minister for Immigration (2016) 253 FCR 496 at [59]; Gill v Minister for Immigration [2017] FCAFC 51 at [60]; BNH16 v Minister for Immigration [2017] FCAFC 109 at [36]; and DAO16 v Minister for Immigration (2018) 258 FCR 175
[63] see DAO16 at [30(5)]
While this body of case law demonstrates that it is not impossible to impugn credibility findings as tainted by jurisdictional error, that does not detract from the fact that ultimately credibility findings are matters within the jurisdiction of the finder of fact to make. Nothing said in those cases negates the central distinction between merits review and review for jurisdictional error. Nor is there any legal requirement that the fact finder have some “rebutting evidence before holding that a particular factual assertion is not made out”.[64] In this case, the applicant has pointed to nothing that could give rise to a concern that the Authority’s credit findings were not open to it, nor were in any way legally unreasonable. To the extent that Ground 2 seeks to challenge those findings, it fails.
[64] CQG15 at [65], referring to Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348 per Heerey J
So far as what is put in the ground about the Authority’s reliance on country information, this appears to be a contention that the Authority’s failure to refer to the latest available country information constituted jurisdictional error, on the basis of a legally unreasonable failure to exercise the discretion under s.473DC to obtain new information. In that regard, a DFAT Country Information Report was published on 2 February 2018, some 28 days before the decision of the Authority and that report is not referred to by the Authority in its reasons.

In BDI17 v Minister for Immigration & Anor,[65] I found that a failure on the part of the Authority to consider obtaining a DFAT country information report, published a month before publication of its reasons, “lacked any evident and intelligible justification”.[66] My reasoning on this is set out in BDI17 at [70]-[71]. Among the reasons for finding that the decision not to consider or seek out that information was legally unreasonable in that case I referred to the following:
a)the delegate is obliged, by Direction 56, made pursuant to s.499 of the Migration Act, when exercising the power under s.65 of the Migration Act, to have regard to current DFAT country information;
b)the Authority conducts a de novo review, on the material referred, and the Secretary is not obliged to give the Authority material after the referral;[67]
c)the Authority’s power to obtain new information extends to material that “may” be relevant, ie, it is not limited to material that “is” relevant; and
d)“the legislature intended that evidence of changed conditions in a visa applicant’s country of origin would be taken into account”.
[65] [2018] FCCA 2162
[66] BDI18 at [72]
[67] section 473CB(1)(c)
In the Minister’s submission, no such obligation applied in this case. In BHX18 v Minister for Home Affairs & Anor,[68] Judge Baird considered an application where an applicant had expressly contended that the Authority had committed jurisdictional error by not having before it that same report, ie, the DFAT country information report of 2 February 2018 relating to Bangladesh. The Authority decision in that case was made on 19 February 2018, some 11 days less after the date of the report than the decision in this case. Her Honour first noted that given the date of the report, it was not (nor could it have been) part of the review material referred by the Secretary.[69] As for any obligation pursuant to Direction 56, that Direction had no application as the Authority’s decision-making power arises under s.473CC of the Migration Act, not s.65.[70] Her Honour also noted that the Authority had no duty to accept, request or obtain new information, though it had a duty to exercise its powers to consider doing so reasonably (referring to s.473DC).[71] Ultimately, whether a failure to consider obtaining such material is unreasonable will depend on the particular circumstances of the case.[72]
[68] [2018] FCCA 3498
[69] cf s.473CB; see BHX18 at [47]
[70] BHX18 at [45]
[71] at [48]
[72] BHX18 at [50]
Her Honour found the circumstances distinguishable to those in BDI17, on the basis that there was nothing in the country information that the applicant had cited from the 2018 report that was significantly different from the country information that the Authority had relied on. Nor was the applicant’s claim directed to what was described as “general Bangladeshi unrest” which was referred to in the 2018 report. Just as in this case, in BHX18, the Authority had addressed and rejected a claim that the applicant’s (limited) role in relation to the BNP would put him at risk.[73] Moreover, her Honour did not consider that the Authority acted unreasonably even if it could be said (about which her Honour was not convinced) that it was practicable in the time available to become aware of the report, and reasonably practicable to obtain the report.[74] Her Honour also noted that even if, contrary to those conclusions, it was unreasonable not to consider getting updated DFAT information, her Honour would have refused relief “given the extract from the 2018 report” on which the applicant relied did not disclose any significant change in the situation considered by the Authority.[75]
[73] BHX18 at [52]
[74] BHX18 at [53]
[75] BHX18 at [53]
The applicant has a general onus of establishing his case in judicial review proceedings.[76] Moreover, an applicant for judicial review not only has to establish error on the part of the decision maker, but also has to establish, as the element that renders an error a “jurisdictional” error, that any such error is material.[77]
[76] see Minister for Immigration v SZGUR (2011) 241 CLR 594 at 616 [67], 623 [91]-[92], referred to with approval by the High Court in Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [41]
[77] see SZMTA at [4], [41], [46]
In light of the findings about the limited and low level role of the applicant in relation to the BNP, and the failure of the applicant to identify any material in the report that he contends ought to have been, but was not, taken into account, just as in BHX18, there is no basis for finding that anything in the later report, had it been before the Authority, could have affected the outcome of his case. Rather, his real challenge appears to be to the findings of the Authority about the extent of his BNP involvement. For this reason, the Minister submits that the Authority did not act unreasonably by not seeking out further information, given the findings made. Moreover, even if the Authority had erred in that manner, such an omission could not constitute jurisdictional error absent the applicant demonstrating that the error is material, that is, that there could have been a different outcome had the Authority obtained a copy of the then recently published report.
While, in my view, the Authority in this case had sufficient time to obtain the updated DFAT country report and should have done so, the error does not go to jurisdiction because there is nothing arising from a comparison of the two country reports that is material to the applicant’s claims, and the Authority’s assessment of them. It is essentially on that basis that this case can be distinguished from BDI17 and, in that regard, it has more in common with BHX18.

Conclusion

The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 13 September 2019