BOA17 v Minister for Immigration - [2018] FCCA 466

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOA17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 466

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority considered all claims by applicant.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 473CB, 473DB(1), 473DC(1), 473DC(3)(a), 473DC(3)(b), 473DD, 473DE

Cases cited:

AJE17 v Minister for Immigration and Border Protection [2018] FCA 111

BZN16 v Minister for Immigration and Border Protection [2018] FCA 54

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

DZU16 v Minister for Immigration and Border Protection [2017] FCCA 851

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137

SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 25

Applicant:

BOA17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 323 of 2017

Judgment of:

Judge Jarrett

Hearing date:

9 February 2018

Date of Last Submission:

9 February 2018

Delivered at:

Brisbane

Delivered on:

1 March 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

The amended application filed on 5 December, 2017 be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 323 of 2017

BOA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He entered Australia as an unauthorised maritime arrival on 9 January, 2013. He applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa on 13 April, 2016. That application was refused by a delegate of the first respondent on 16 November, 2016. A subsequent review of that decision carried out by the second respondent resulted in the affirmation of the delegate’s decision. From that decision, given on 14 March 2017, the applicant seeks judicial review and the issue of constitutional writs quashing the second respondent’s decision and returning his application to the second respondent to be dealt with according to law.
To obtain relief from this Court, the applicant must show jurisdictional error in the second respondent’s decision. To do that, the applicant relies upon an amended application for review filed on 5 December, 2017 and written submissions filed on 16 January, 2018. He also made some brief oral submissions at the hearing before me.
The first respondent contends that the application fails to establish any jurisdictional error and must be dismissed.
The material before the Court demonstrates that the applicant made the following claims in his statutory declaration that accompanied his visa application:
a)He was a Hindu and was in a relationship with a Muslim girl and upon realising that the girl was Muslim, he ended the relationship;
b)The girl told her family (including her father, brothers and uncles) about the relationship and they came after the applicant. They took him to remote bushland and repeatedly hit him and threatened to kill him. He managed to escape with the help of an unknown person nearby;
c)After the incident, the applicant went to live with his brother in Dhaka. The girl’s family continued to threaten, taunt and assault his other relatives in Narail and the girl’s family wanted to know where the applicant was. The girl’s family said that if he reported anything to the police then they would kill them;
d)Since the applicant left Bangladesh, the girl with whom he was in a relationship consumed poison and this enraged her family.
The applicant attended an interview with a delegate of the first respondent for the purposes of his visa application. At that interview the applicant also claimed to have converted to Christianity whilst in detention to avoid being sent back to Bangladesh and that he identified as both a Hindu and Christian.
The second respondent’s reasons for decision demonstrate that the second respondent had regard to the material referred to it under s.473CB of the Migration Act 1958 (Cth). The applicant had also made a submission to the second respondent for the purposes of the review, but the second respondent found that the submission reiterated information provided in his visa application and his interview with the first respondent’s delegate. The second respondent did not consider that it was new information for the purposes of s.473DC(1) of the Act. However, the submission also included four news articles regarding attacks on Hindus, which the second respondent considered was new information.
However, having considered the material before it, including the new information provided by the applicant, the second respondent did not accept the applicant’s claim to have had a relationship with a Muslim girl or to have been attacked by her family. The second respondent was concerned that the applicant had provided a number of different responses at his initial interview with the delegate in response to the delegate’s questioning about the timing and duration of the claimed relationship. The second respondent was concerned that the applicant had shifted his evidence a number of times in response to the delegate’s concerns. The second respondent did accept that a person who was part of a comparatively small minority and who placed importance on the religion of his partner would end the relationship upon learning that his partner was a member of another religion.
The second respondent was impressed by the fact that the applicant had made no mention in his arrival interview of the relevant relationship or the harm that he claimed had followed the discovery of that relationship by the woman’s family. It did not accept the explanations provided by the applicant for those omissions. Specifically, the second respondent considered that if the applicant had left Bangladesh for the reasons he claimed and he genuinely feared the woman’s family, he would not have failed to mention those claims in his entry interview. The second respondent did not accept that the applicant had been in a relationship with a Muslim girl who later took poison, that he was harmed or threatened by her family or that his own family had been harassed since that time.
The second respondent accepted that the applicant was Hindu. The second respondent was willing to accept that the applicant may have undergone a baptism or some form of religious conversion process whilst in detention and that he may have had some interaction with a Christian church or agencies. However, it considered it significant that the applicant had repeatedly identified as Hindu to the exclusion of any mention of his claimed Christian religion. Considering the timing of the applicant’s claimed conversion and his disclosure of it to the Department, along with his consistent identification as Hindu, the second respondent was not satisfied that the applicant had genuinely converted, had a genuine belief in or commitment to Christianity, that he practised that religion, or that he identified as Christian.
As to the applicant’s religion as a Hindu, the second respondent had regard to country information and the reports submitted by the applicant and accepted that there were outbursts of violence and other harm against Hindus which had escalated in recent years. However, it also referred to country information that those affected by these attacks were relatively small in the context of Bangladesh’s 15 million strong Hindu population and did not suggest that there is a high level or frequency of attacks in either area where the applicant had previously lived. The second respondent found the chance the applicant would be involved in an attack against the Hindu community was remote and it was not satisfied that there was a real chance of the applicant suffering serious harm for this reason.
The second respondent also considered whether there was a real chance that the applicant would suffer harm as a failed asylum seeker. It was not satisfied that he would suffer harm as a failed asylum seeker or because of the period he had spent outside Bangladesh.
The second respondent was not satisfied that the applicant had a well-founded fear of persecution or that he met s.36(2) of the Act. Nor was it satisfied that the applicant would face a real risk of significant harm on the basis of his claims and therefore, the second respondent found that the applicant did not meet s.36(2)(aa) of the Act.
By his amended application filed on 29 November, 2017 the applicant purports to raise ten grounds of review. At least two (grounds nine and ten) are narrative and do not warrant separate consideration. In his written submissions he summarises his grounds by saying:
2. It is respectfully submitted that the Immigration Assessment Authority had failed to discharge its duty provided in the Migration Act and in the common law and failed to properly consider my claim under Section 36 (2) and S36(2)(aa) of the Migration Act 1958 (“the Act”).
The applicant’s written submissions do not address each of the purported grounds in his amended application for review. I will address each of the grounds in the amended application for review, as the first respondent has done in his written submissions and I will deal with the applicant’s arguments where they arise for consideration.
Ground one of the amended application asserts that the second respondent acted without jurisdiction or in excess of jurisdiction “when it failed to take into account relevant considerations”. The particulars provided by the applicant in his amended application do not advance this ground because he does not identify the relevant considerations that the second respondent failed to take into account. The second respondent’s reasons show that it considered the matters raised by the applicant before the delegate and the new information provided by the applicant to the second respondent.
Without the identification of just what it was that the second respondent did not take into account, I accept the first respondent’s submission that this ground cannot succeed.
In his written submissions, the applicant describes ground one as (errors in the original):
IAA failed to comply with s424(A) or s 424 (AA) of the Act in respect information that it considered would be there reason or part of the reason for affirming the decision under review. The IAA took into account information that had been given by my orally to the Minister’s Department in determining whether I was a truthful witness. That information was not put to me in accordance with s424 (A) or 424 (AA) of the Act. The IAA raised concerns which seriously undermined the credibility of the appellant on the basis of following ‘information’ which should have been put formerly under section 424 (a) or Section 424 (aa) to put on notice to me that such information would be the reason or part of the reason for affirming the decision under review and I should have been advised that I can either orally comment or request additionally time to respond in writing. It should be noted that following ‘information’ had been neither provided in relation to me first protection visa application nor orally to the DIBP in relation to the current application.
These matters are not the subject of a ground of review in the amended application. In any event, the argument cannot succeed. As the first respondent points out, s.424A of the Migration Act concerns reviews of Part-7 reviewable decisions and does not apply to reviews by the second respondent pursuant to Part-7AA of the Act. Part-7AA contains an equivalent provision – s.473DE – which requires the second respondent to give particulars of any new information only if the new information has or is to be considered by the second respondent under s.473DD and would be the reason, or part of the reason, for affirming the fast track reviewable decision. I accept the first respondent’s submission that the “information” contended by the applicant as arising from the delegate’s decision – the inconsistencies in the applicant’s evidence and the concerns about the applicant’s credibility – was neither information nor new information for the purposes of s.473DE of the Act.
Further, I accept the first respondent’s submission that the applicant took the opportunity to provide new information to the second respondent and the second respondent was satisfied that there were exceptional circumstances to justify considering that information. None of the information, however, engaged the obligation in s.473DE of the Act, because it was not specifically about the applicant.
Before passing from this matter, it is necessary to record that the applicant’s written submissions provide (citations omitted, errors in the original):
12. In NAQS, Hill J held at [28] that the word “obtains” in 426(3) suggests that the provision “relieves the IAA from an obligation itself to seek out a witness for the purpose of that witness giving evidence but is silent concerning the obligation of a IAA to listen to evidence which an applicant wishes the IAA to hear whether evidence is relevant in the proceedings.” At (29] his Honour said, “it is implied in Division 4 of Part 7 of the Act and indeed from the very obligation imposed on the IAA to entertain a ‘review’ that an applicant is entitled to require the IAA to have regard to oral evidence of a witness called by the applicant, although only if that evidence is relevant to the issues before the IAA.”
The reference in that passage is to NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137 which was decided many years before the introduction of Part-7AA to the Migration Act. The purported quotations from Hill J’s judgment are not accurate because in his Honour’s judgment there is no reference to the “IAA”. The case before Hill J was an application for review of a refugee review tribunal under Part-7 of the Migration Act. The tampering with the words used by Hill J in NAQS is regrettable. An applicant’s case is not advanced in any sense by changing the words used by judges in cases relied upon to support an applicant’s argument.
Ground two asserts that the second respondent failed to “assess harm on the basis of my claims”. However, I accept the first respondent’s submissions that it is plain from the second respondent’s reasons that it considered and made findings in relation to the applicant’s claims (including claims arising on the material before the second respondent but not specifically raised by the applicant). It determined those matters against the applicant.
Ground three asserts that the second respondent “failed to assess the present situation for minority Hindus in Bangladesh since I left”.
However, again, the second respondent’s reasons shows that it considered the applicant’s claim to fear harm on the basis of his Hindu religion and considered country information regarding the heightened risk of violence against members of religious minority groups following his departure. The second respondent also made particular reference to country information cited by the first respondent’s delegate and the four articles submitted by the applicant to the second respondent. Those articles related to further outbreaks of violence over the course of 2016. The second respondent ultimately accepted that there had been violence and other harm against Hindus in recent years, but considered that the prospects of the applicant being caught up in an attack against the Hindu community to be remote. This was a finding open to the second respondent on the material before it.
Ground four argues that the second respondent denied the applicant natural justice. In this respect, the particulars provided by the applicant in his amended application suggest in a number of places, that there was a hearing before the second respondent. But there was no such hearing. Accordingly, the applicant’s claim that:
… the IAA asked many irrelevant questions to test the credibility of my evidence.
… The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. Sometimes I was nervous and confused at the time of interview with the Department & the IAA. I did not understand the question properly.
…
I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.
I did not collect the IAA interview CD. After received the CD, I will provide the transcript of IAA hearing.
cannot succeed because there was no hearing by the second respondent. The second respondent did not conduct a hearing or an interview with the applicant nor was it required to: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [75].
In his written submissions, the applicant argues that “The IAA’s refusal to hear from me was based on no evident or intelligible justification and was an unreasonable exercise of discretion”. This matter bears some consideration. Whilst the second respondent was not obliged to hear from the applicant at all (s.473DB(1) of the Act) it was invested with a discretion to invite the applicant to give new information in writing or at an interview (ss.473DC(3)(a) and 473DC(3)(b) of the Act). A failure to exercise those powers may give rise to jurisdictional error where the failure might be said to be unreasonable in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. In BZN16 v Minister for Immigration and Border Protection [2018] FCA 54 Griffiths J said:
[35] The Minister’s submission that the power in s 473DC(3)(b) is purely discretionary and the IAA is not under a duty to consider the possible exercise of that power was recently considered in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210. Without addressing the existence of such a duty squarely, the Full Court said:
[69] Next, it is appropriate to record that, although much argument was addressed to the nature of the Authority’s discretion in Subdiv C, including s 473DC, there is no doubt that the Authority had power to get any documents or information which were not before the Minister and which the Authority considered may be relevant. Put differently, that the Authority has a discretion rather than a duty to get those documents or information does not provide an answer to whether or not the Authority acted reasonably as explained in Li. We do not accept the submission on behalf of the Minister that the only relevant question is whether Pt 7AA required the Authority to give such notice to a referred applicant.
[70] Neither do we accept the Minister’s submission that if there was no duty imposed on the Authority to consider the exercise of a discretionary power, the principles of legal unreasonableness could only have application in cases where the Authority had given consideration to exercising the power, and decided to exercise it in a manner adverse to an affected party. In our opinion, that proposition is too broad.
[36] Thus, the Full Court rejected the Minister’s submission that no unreasonableness can arise where the IAA did not consider whether to exercise its discretion in s 473DC.
[37] Accepting that a failure to exercise the power in s 473DC(3)(b) may give rise to jurisdictional error, I do not accept that the FCCA judge erred in failing to find such an error in this case.

The proposition that a failure to exercise the power in s.473DC(3)(b) may give rise to jurisdictional error does not appear to have been doubted by Flick J in AJE17 v Minister for Immigration and Border Protection [2018] FCA 111 where his Honour said:
[22] Given that adverse findings as to credit were made by the Authority, consideration should at least be given by the Authority to itself conducting an interview. As a matter of general principle, procedural fairness does not require a decision-maker to conduct a face-to-face interview with a claimant in all circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte P T [2001] HCA 20 at [27], (2001) 178 ALR 497 at 504 per Kirby J. The prospect of adverse credibility findings being made may suggest that such a course is appropriate: T v Refugee Status Appeals Authority [2004] NZAR 552 at 555 [18] per Miller J. But such matters of general principle have necessarily to be considered by reference to the statutory context in which the Authority in the present case was proceeding, including that:
·the adverse findings as to credit made by the Authority were based in large part (albeit not exclusively) upon inconsistencies in the account being given by the Applicant rather than an assessment founded merely upon whether the evidence being given should be believed or the weight to be given to such evidence;
· the review provided for in Pt 7AA is expressly stated to be a “limited form of review” (s 473BA) and one in which there is no right to an interview being conducted before the Authority (s 473DB(1)(b)). An applicant may make a request for an interview and the Authority is given a discretion to conduct an interview (s 473DC(3)(b)). The exercise of that discretion is necessarily one that would have to be exercised in accordance with law.
Within that context, and given the extent to which the Applicant was given an opportunity to place “a submission to the IAA” as recorded at para [4] of the Authority’s reasons for decision, it was open to the Authority to decline the request for an interview. The circumstances in which the exercise of the discretion conferred by s 473DC(3) may miscarry need not be explored in any great detail. One such circumstance may, perhaps, be provided if a claimant has centrally relevant information which can only be effectively communicated orally. It is sufficient in the present case to conclude that there was no identification on the part of the Applicant of any denial of procedural fairness on the part of the Authority, including the absence of any explanation as to why an interview was the only – or, indeed, a preferable – manner in which he could present his claims for review. He had been extended an opportunity to place before the Authority all such material as he wished to have considered by the Authority.
Here, there is nothing to suggest that the second respondent considered exercising the discretion to take new information from the applicant by way of interview. It did consider and accept that the four news articles provided by the applicant were new information but the second respondent did not invite the applicant to provide that information pursuant to s.473DC(3)(a) of the Act.
Nonetheless, the adverse findings as to credit made by the second respondent, as in AJE17, were based almost exclusively upon inconsistencies in the accounts given by the applicant in his various statements for the purposes of his visa application, rather than “an assessment founded merely upon whether the evidence being given should be believed or the weight to be given to such evidence”.
Although the suggestion made by the applicant in his written submissions that “The IAA’s refusal to hear from me was based on no evident or intelligible justification and was an unreasonable exercise of discretion” warrants consideration, it does not, in my view, reveal any jurisdictional error by the second respondent.
By ground five the applicant argues that the second respondent made its “decision without any verification of his genuine documentary evidence and statement”. The particulars to his amended application add nothing to this ground. In his written submissions, the applicant argues:
The IAA fell into jurisdictional error in that it failed to make enquiries as required by law, whether by the exercise of its power under s.424 of the Migration Act 1958 (“the Act”) to get information or otherwise.
11. I provided documentary evidence to the IAA in relation to the application. The IAA questioned the credibility of me and failed to make enquires to verify the authenticity of the documents. I provided document and the IAA could have easily verified those documents by contacting the authors of those letters in relation to the commitment of me.
12. I provided supporting documents. The IAA noted that there was country information indicating that documents can be fabricated, and it would have to weigh up that information together with credibility concerns.
These submissions bear no association with the case at hand. The applicant did not provide any documents to the second respondent, the credibility of which was called into question by the second respondent. There were no “letters in relation to the commitment of me” put to the second respondent or, for that matter, the first respondent’s delegate.
To the extent that the applicant might be referring to the news articles that he supplied to the second respondent, the second respondent had regard to that information, without questioning its veracity when determining the applicant’s claims. I accept the first respondent’s submission that there is nothing in this ground.
The applicant argues in grounds six and seven that the second respondent’s decision “is identical or similar” to the delegate’s decision and that there was “Complete violation of merit review procedure with the IAA.” He argues that the second respondent did not properly assess his case against the complementary protection provisions of the Migration Act.
However, I accept the first respondent’s argument that the second respondent’s decision, when compared with the delegate’s decision, reveals that it properly engaged with the applicant’s claims and the material, including the new information before it. It made its own findings of fact and explained its own reasons for doing so.
Moreover, to the extent that the applicant complains that the second respondent determined his claim for complementary protection by reference to the findings of fact that it made when considering his claims to protection pursuant to s.36(2)(a) of the Act, the authorities establish that such an approach, of itself, reveals no jurisdictional error: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125, DZU16 v Minister for Immigration and Border Protection [2017] FCCA 851 at [141]. No jurisdictional error is established by these grounds.
Ground eight advances an argument that the second respondent merely relied on DFAT country information and did not consider any information from an independent organisation in respect of the applicant’s claim to fear harm in Bangladesh on the basis of his Hindu religion. However, the factual basis for that argument is incorrect. The second respondent’s decision record demonstrates that it had regard to country information from a variety of sources, including the news reports provided to it by the applicant. It did not limit its consideration to “DFAT country information”. This ground does not reveal jurisdictional error.
As I have said above grounds nine and ten are not grounds of review on any interpretation and so do not warrant any further consideration.

Conclusion

The grounds of review identified by the applicant do not reveal jurisdictional error. My own consideration of the second respondent’s decision does not reveal jurisdictional error either.
The amended application must be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 1 March, 2018.

Date: 1 March, 2018