CCW16 v Minister for Immigration and Border Protection
[2017] FCCA 2
•1 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCW16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a safe haven enterprise visa – applicant claiming a fear of harm in Bangladesh – whether the Authority overlooked parts of the applicant’s claims or had withheld from it material before the Minister’s delegate considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 46A, 65, 349, 357A, 359A, 415, 422B, 424A, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473FA, 473GA, 473GB, 473JA, 473JB, 473JC, 473JD, 473JE, 473JF, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 Applicant A v Minister for Immigration (1997) 190 CLR 225 Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 SZOIN v Minister for Immigration [2011] FCAFC 38 |
| Applicant: | CCW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 341 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 24 October and 9 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2017 |
REPRESENTATION
| Counsel for the Applicant: Solicitors for the Applicant: | Mr S Tully, pro bono publico Hall & Wilcox, pro bono publico |
| Counsel for the Respondents: Solicitors for the Respondents: | Mr B Kaplan Australian Government Solicitor |
ORDERS
The application as amended on 11 November 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 341 of 2016
| CCW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 27 June 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a safe haven enterprise visa (SHEV). The applicant asserts that the Authority erred in not considering a claim of generalised violence in Bangladesh and the possibility of a threat of imprisonment or fine upon return there because of his unlawful departure. He also raises a procedural issue concerning a purported certificate restraining the production of certain information to the Authority.
The applicant was represented on a pro bono basis by counsel and solicitors. The Court appreciates the willingness of practitioners to appear on this basis.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a national of Bangladesh[1]. He arrived in Australia on 18 July 2013 as an unauthorised maritime arrival and was taken into immigration detention[2].
[1] Court Book (CB) 3
[2] CB 127
On 25 July 2013, the applicant participated in an entry interview with an officer within the Minister’s Department (Department)[3].
[3] CB 1-20
On 6 November 2015, the Department notified the applicant that the Minister had exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to permit him to make a valid visa application and invited him to apply for, relevantly, a SHEV[4].
[4] CB 22-27
On 21 April 2016, the applicant made an application for the SHEV[5]. In support of that application, the applicant made a statement in which he set out his claims for protection[6]. In summary, the applicant feared persecution at the hands of the Purba Bangla Communist Party (PBCP) because he did not follow their rules or cooperate with them[7], and the police for being suspected as a member of that group[8].
[5] CB 54-97
[6] CB 98-102
[7] CB 100 [100]
[8] CB 100 [21]-[22], 101
On 27 April 2016, the applicant participated in an interview with the delegate[9].
[9] CB 167-184
The delegate made a decision to refuse to grant the SHEV to the applicant on 6 May 2016[10].
[10] CB 126-146
On 19 May 2016, the Minister referred the delegate’s decision, being a fast track reviewable decision, to the Authority pursuant to s.473CA of the Migration Act[11].
[11] CB 186
On 27 June 2016, the Authority affirmed the delegate’s decision[12]. The Authority’s reasons for decision are detailed. Those of the Authority’s factual findings that are relevant to the applicant’s grounds of review are addressed below.
[12] CB 208-223
The present proceedings
These proceedings began with a show cause application filed on 1 August 2016. The applicant now relies upon an amended application filed on 11 November 2016. There are two grounds in that application:
The decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error because:
1. The IAA failed to consider one or more claims made by the applicant or an integer of those claims.
Particulars for Ground 1A
a. The applicant had claimed a fear of persecution due to generalised violence in Bangladesh.
b. The IAA did not consider this claim.
Particulars for Ground 1B
a. At [27] of its reasons for decision, the IAA concluded that the applicant would not face a real chance of harm for having illegally departed Bangladesh because the Department of Foreign Affairs and Trade was unaware that penalties arising under the immigration law of Bangladesh were being “enforced”.
b. The IAA was required but failed to consider whether the possibility or threat of penalties arising under Bangladesh immigration law for having illegally departed Bangladesh constituted persecution of the applicant upon return, thereby committing an error of the kind identified in SGKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 44 at [21].
The IAA’s failure to consider the claims particulars in either Ground 1A or Ground 1B constituted jurisdictional error.
2. The IAA did not discharge its obligations to review the applicant’s decision under s.473DB of the Migration Act 1958 (Cth) (the Act).
Particulars
a. The Department of Immigration and Border Protection purported to issue a non-disclosure certificate over a document or information under s.473GA of the Act.
b. The IAA requested that document or information in order to conduct its review.
c. There appears to be no evidence that the document or information was provided to the IAA.
d. The requirements of s.473CB of the Act were not met and the IAA was unable to consider all of the review material relevant to the decision.
In addition to the court book filed on 21 September 2016, I have before me as evidence two affidavits. The first is an affidavit by Kelly Jane Egan made on 25 November 2016 which introduces a partial transcript of the SHEV interview conducted by the Department on 27 April 2016. The second is an affidavit by Paul Joseph Johnson made on 25 November 2016. Mr Johnson is an officer of the Department and deposes as to the circumstances of the preparation of a purported certificate (described as a draft certificate) under s.473GA of the Migration Act.
The applicant and the Minister both made pre-trial submissions in writing and also made oral submissions at the trial of this matter on 9 December 2016. I have been assisted by those submissions.
Consideration
The applicant’s contentions
Ground 1 - failure to consider claims or integers of claim
Ground 1A Generalised violence
At the SHEV interview on 27 April 2016, the applicant’s representative stated that “[g]eneric violence in Bangladesh is a major issue”[13]. The representative then discussed targeted political violence[14].
[13] CB 183
[14] CB 184
The delegate noted that the applicant attended a SHEV interview and made the following relevant additions or amendments to his written claims: that he may be at risk of suffering serious harm as a result of generalised violence “and” targeted political violence[15]. Both claims were considered by the delegate[16]. The delegate concluded that the applicant had no greater risk of harm as a result of generalised violence than other members of the population in Bangladesh. The delegate made the same conclusion for this claim in the context of undertaking a complementary protection criterion assessment: the applicant would not face risks personally in Dhaka or Chittagong that would not be faced by the population of the country generally[17]. The delegate also assessed the targeted political violence claim in the light of country information concerning political violence, particularly by student organisations affiliated to the main political parties[18]. The delegate reasoned that the applicant did not come from a populous centre with large numbers of students and, because he had no particular political profile, political activists would have no particular reason to target the applicant[19].
[15] CB 128, point 9
[16] CB 142 [94]
[17] CB 144 [107]
[18] CB 135 [48]
[19] CB 142 [94]
Before the Authority, the reviewer noted that the applicant’s claims were contained in the information referred to the Authority[20]. However, the generalised violence claim was not identified by the Authority in its list of claims[21]. The Authority only notes that the applicant feared returning to Bangladesh because of serious threats from other political groups in the area[22]. Furthermore, the Authority’s account of the SHEV interview did not refer to the generalised violence claim[23].
[20] CB 209
[21] CB 209-210
[22] CB 210, point 3
[23] CB 212 [12]-[14]
There is no evidence within the Authority’s reasons for decision that the generalised violence claim was expressly or impliedly considered. There is also no evidence that the applicant resiled from or withdrew this particular claim.
It could be concluded that the Authority considered the targeted political violence claim. The Authority noted that the applicant feared returning to Bangladesh because of serious threats from other political groups in the area[24]. The Authority “initially appears to overlook this claim”; at [26] of its reasons, the Authority observes that the applicant “does not claim to have experienced any problems from any other political group other than the PBCP, and from the Awami League in relation to his association with the PBCP”. The Authority did not accept that the applicant had a fear of harm from the PBCP or the Awami League. The Authority then stated that the applicant “has otherwise given no indication that he or his family have been threatened or otherwise troubled by any other political group in his area”. The Authority was not satisfied that the applicant would face a real chance of harm from any other political group.
[24] CB 210
The Authority indicated at [29] that it was not satisfied that the applicant faced a real chance of harm upon return from the PBCP, the Awami League, the Haq group or any other political group. The Authority then considered whether the applicant’s “profile as [a] whole would result in his facing harm in Bangladesh for any other reason.” The Authority concluded that, “[h]aving considered the applicant’s claims and profile, and the available country information, I am not satisfied that there is a real chance that the applicant would face harm upon return to Bangladesh for any other reason.” The Authority could therefore be taken to have addressed the targeted political violence claim because it considered the applicant’s “profile” and was not satisfied that he would be targeted “for any other reason”. This approach was repeated at [33] of its reasons in the context of the complementary protection assessment where the Authority “considered whether the applicant’s profile as [a] whole would result in his facing harm in Bangladesh for any other reason”.
The applicant contends that his claim to fear persecution because of generalised violence could not be considered to have been addressed in the context of an assessment of his other claims. In particular, the generalised violence claim is independent of or distinct from the targeted political violence claim. A fear of harm from generalised violence could not be considered to have been addressed by assessing an applicant’s profile. There may be a real chance or risk of generalised violence occurring to an individual irrespective of their particular profile. Nor could the claim of generalised violence be considered to have been addressed by the expression “for any other reason” because that conclusion is expressly linked to the Authority’s consideration of the applicant’s profile. The Authority’s obligation to address the generalised violence claim was not subsumed in any findings of greater generality. In particular, the Authority found that the applicant was not of interest to the authorities, and made no finding that State protection would be generally available to him.
The claim to fear persecution on account of generalised violence was raised by the applicant’s then representative and identified and dealt with by the delegate. It was not considered by the Authority.
Ground 1B - the possibility of a threat of imprisonment or fine upon return
The applicant contends that the Authority was required but failed to consider whether he faced a real chance of harm arising from the threat of imprisonment or a fine upon return for having illegally departed Bangladesh. The Authority (and the delegate) accepted that the applicant departed Bangladesh unlawfully[25]. At [27] of its reasons for decision, the Authority accepted that the applicant departed Bangladesh in an illegal manner to travel to Malaysia by boat and without a passport[26]. The Authority summarised a Country Report on Bangladesh from the Department of Foreign Affairs and Trade (DFAT) dated 20 October 2014 that if a Bangladesh citizen emigrated or departed or attempted to emigrate or depart Bangladesh other than in accordance with the Emigration Ordinance 1982[27] (Emigration Ordinance), they “may” face up to one year imprisonment or a fine. However, DFAT was unaware of these penalties being “enforced”.
[25] CB209 [1]; 216 [27]
[26] CB 216 [27]
[27] Ordinance No XXIX of 7 September 1982
The applicant contends that the Authority’s description of the legal position is not entirely accurate. He submits that, in fact, individuals who illegally depart from Bangladesh “shall” rather than “may” be punished. The Emigration Ordinance provides that:
20. (1) Whoever, except in conformity with the provisions of this Ordinance and the rules made thereunder, emigrates or attempts to emigrate or departs or attempts to depart shall be punishable with imprisonment for a term which may extend to one year simple imprisonment or with fine not exceeding Taka five thousand or with both
(see or >
The most recent DFAT report states that[28]:
[t]he Emigration Ordinance Act (1982) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act. DFAT is not aware of any cases in which authorities have enforced these provisions.
[28] DFAT, DFAT Country Report Bangladesh (5 July 2016), [5.20]
The Authority was not satisfied that the applicant, if returned to Bangladesh, would face a “real chance” of “harm” for having illegally departed Bangladesh. The balance of [27] of its reasons considered whether the applicant would face a real chance of harm for having sought asylum in Australia, for which the Authority answered no.
Both imprisonment and a fine can qualify as “harm”. Without limiting what serious harm is for the purposes of s.5J(4)(b) of the Migration Act, the instances of serious harm include “a threat to a person’s…liberty” and “significant economic hardship that threatens the person’s capacity to subsist”[29].
[29] Migration Act, s.5J(5)(a) and (d)
The Authority is said to have failed to consider whether in the reasonably foreseeable future the applicant would be returning to Bangladesh under the threat of a penalty for illegal departure. In SGKB v Minister for Immigration[30], the Court said at [21]:
Secondly, the Tribunal appears not to have considered the seriousness of the consequences to the appellant of his conversion becoming known to the authorities. The Tribunal accepted that the penalty for apostasy might be death. The evidence demonstrated other quite serious consequences, including loss of government employment. It ought to have considered whether or not the mere possibility of a death sentence, regardless of how remote that possibility might be, could itself constitute persecution. In our view, to live under the shadow of such a threat might well do so.
[30] [2003] FCAFC 44
The applicant submits that the different penalties at issue – the death penalty on the one hand and one year imprisonment and/or a fine on the other – are not a persuasive basis for distinguishing SGKB from the present case. The nature of the harm depends on the claimed circumstances and could entail death, lost employment and other serious consequences. The underlying emphasis from SGKB is said to be clear: the possibility of harm occurring by way of a penalty, irrespective of its remoteness, could constitute persecution. This aspect was not expressly or implicitly reflected in the Authority’s real chance finding. Furthermore, the objective possibility of harm is said to be higher than the Authority appreciated because individuals “shall be punishable” and not merely “may” be such.
The Authority was moreover required to consider whether the threat of any penalty might constitute persecution of the applicant. Having regard to the ordinary meaning of the words, the existence of a “threat” is not encompassed by the word “enforced”. Even were a penalty not to be enforced, the mere threat of enforcing that penalty would remain.
The applicant’s fear of the possibility or threat of a penalty being imposed against him upon return for his illegal departure from Bangladesh was implicitly claimed in his fear of harm generally for that reason. The applicant contends that the Authority’s failure to consider this claim or integer of this claim constituted jurisdictional error.
Ground 2 - non-compliance with s.473DB(1) of the Migration Act
Subject to Part 7AA of the Migration Act, the Authority must review a fast track reviewable decision referred to it under s.473CA by considering the review material provided to it under s.473CB without accepting or requesting new information and without interviewing the applicant[31]. The Secretary of the Department must give the specified review material to the Authority in respect of each fast track reviewable decision referred to it under s.473CA of the Migration Act[32]. This includes any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review[33]. Division 3 of Part 7AA and ss.473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority[34].
[31] Section 473DB(1)
[32] Section 473CB(1)
[33] Section 473CB(1)(c)
[34] Section 473DA(1)
On 18 May 2016, the delegate purported to issue a certificate under s.473GA of the Migration Act[35]. That section provides that, despite anything else in this Act, the Secretary must not give to the Authority a document, or information, if the Minister certifies under s.473GA(2), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it would prejudice the security, defence or international relations of Australia. In this case the delegate certified that s.473GA(1) applied to “a document or information” contained in the applicant’s file. Disclosure of “this document or information” would be contrary to the public interest because the file contained “a document or information” which if disclosed would prejudice the security, defence or international relations of Australia. The certificate then stated that s.473GA(1) of the Migration Act prohibited the disclosure of documents or information covered by this certificate.
[35] CB 151
The applicant notes that the purported certificate appears to apply to a particular document or information rather than the whole file. However, it may be invalid because the non-disclosure requirement in s.473GA(1) applies to “any matter contained in the document” and not to the document per se. The delegate appears to have excluded the whole document and not just “the matter”. The expression “of any matter” contained in the document in s.473GA(1) must have meaning and work to do.
In any event, on 22 June 2016, the Authority wrote to the Department noting that “[t]he documents listed below appear to be missing or incomplete”[36]. After noting the non-disclosure certificate and the certification that s.473GA(1) applied to the applicant’s file, the Authority stated that “[t]his file has not been supplied in the pdf portfolio. Could DIBP please supply this document?”. The Authority asked the Department to review the file and “arrange to resend the documents within 2 working days”. The Authority requested the Department to “upload the documents to STS” and notify completion of the upload. Because the Authority requested the documents or information, it did not appear to consider itself bound by s.473GA of the Migration Act.
[36] CB 201
The court book is unclear about what occurred. It appears the Authority sent this letter by email to the Department on 22 June 2016 and it was informed on 27 June 2016 that a supplementary pdf portfolio had been uploaded[37]. The contents of that document are unclear.
[37] CB 158, 200
It is not apparent to the applicant that the Authority had all the review material before it when its decision was made. The Authority simply noted that it had had regard to the material referred by the Secretary under s.473CB of the Migration Act[38]. However, the Authority needed the document or information to conduct its review. The evident Parliamentary intention is for the Authority to consider all of the review material, including information provided from the Department. The Authority is disabled from performing its review effectively if a document or information is not provided. It is unclear from the court book whether the Authority was in a position to access all of the information it lawfully could before conducting its review of the applicant’s decision.
[38] CB 209 [2]
The applicant will be denied procedural fairness if the Authority was not in a position to discharge its obligations under s.473DB of the Migration Act. It might not appear by the operation of the statutory provisions that the Authority is in a position to afford procedural fairness to an applicant in circumstances where a decision by the Department adversely affecting an applicant is based on a document or information that is withheld from both the applicant and the Authority. It is difficult to see how procedural fairness can be afforded to an applicant when the Authority is statutorily barred from remedying that position. However, s.473DA of the Migration Act refers to the natural justice hearing rule, referred applicants can be interviewed and having regard to Part 7AA as a whole, there is no clear parliamentary intention to exclude an applicant’s entitlement to procedural fairness under the statutory scheme. In this case, on 19 May 2016, the Authority had indicated to the applicant that it makes a decision on the basis of information provided by the Department[39]. The Authority indicated to the applicant that, except in limited circumstances, it would only consider the information that was before the Department at the time when the refusal decision was made. The Authority stated that the Department was responsible for providing the Authority with all documents it considers relevant to an applicant’s case. The Authority must be in a position to properly meet its obligations under s.473DB(1) by considering all of the review material required to be provided by the Department to the Authority under s.473CB.
[39] CB 186-190
The applicant considers available evidence for this ground of review to be unclear. A document headed “Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist”[40] indicated a “yes” for a s.473GA non-disclosure certificate being required, that the certificate was included in the PDF Portfolio (PDFP) and appeared to be dated 18 May 2016. Another similarly-headed document of apparently the same date[41] indicated that a non-disclosure certificate was contained in the PDFP but that a s.473GA certificate was not required. File uploads apparently referring the applicant’s matter to the Authority occurred on 19 May and 27 June 2016[42]. Additional evidence was provided by the Minister indicating that no operative certificate was issued but the applicant maintains this ground.
The Minister’s contentions
[40] CB 147-150
[41] CB 152-155
[42] CB 156-7
Ground 1: generalised violence
The Minister offers four responses to the first part of Ground 1.
First, contrary to the applicant’s submissions, that “generic violence in Bangladesh is a major issue” this was not an independent claim for protection. As the transcript of the interview with the delegate[43] reveals, those words were uttered by the applicant’s representative during the interview to make the point that, unlike previous cases in which she has assisted review applicants, where she has argued that they may be subjected to “generic violence in … Bangladesh”, in the present case the applicant fears harm at the hands of an “outlawed communist party”—a claim that the applicant’s representative had not dealt with previously. Also, the representative went on to say that she “can’t … really say more than that his claim is clearly a political one.”
[43] Affidavit of Kelly Egan
Alternatively, the representative’s submission as to generalised violence was uttered in the same breath as her assertion that the applicant would be targeted by political groups in Bangladesh. So much is plain from the representative’s submission shortly thereafter, where she said:
… I think that the department or your department is really with a lot of these cases saying it’s just criminal violence rather than … political targeted violence but I guess the argument would be that … clashes and intimidation, beatings and fights etc that go on between politically affiliated groups … referring to these as simply criminal with no reference to politics is … not correct, it is an erroneous way of thinking.
In other words, the applicant’s representative can be taken to have submitted that the occurrence of criminal violence does not gainsay the proposition that such violence may be politically motivated.
Contrary to the applicant’s submissions, the delegate did not identify “generic violence in Bangladesh [being] a major issue” as one of the applicant’s claims for protection. Those claims were listed at [80] of the delegate’s decision[44] and focused upon, relevantly, the applicant’s imputed membership, or support, of the PBCP. The delegate’s findings at [94][45] need to be seen in that light.
[44] CB 140
[45] CB 142
Secondly, and alternatively, if, as is contended by the applicant at [12] of his submissions, the claim that “generic violence in Bangladesh is a major issue” were “independent of or distinct from the targeted political violence claim”, then it is not a claim for protection for a reason relating to the Refugees Convention.
Section 5H of the Migration Act provides that a person is a refugee if he or she is outside of his or her country of nationality and is unable or unwilling to avail himself or herself of the protection of that country “owing to a well-founded fear of persecution”. Section 5J(1)(a) of the Migration Act, however, provides that a person has a well-founded fear of persecution if “the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. Fearing “generic violence” is said not to meet that description.
In the complementary protection context, a person is taken not to face a real risk of significant harm if the Minister is satisfied that “the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally”[46]. The applicant himself, through his representative, submitted to the contrary during the interview with the delegate.
[46] Section 36(2B)(c)
Further, the Minister submits that it cannot be said that the Authority considered that the applicant would face significant harm personally, as it found, at [29][47], that he had no profile that would attract adverse attention, amounting to harm, in Bangladesh.
[47] CB 217
Thirdly, to assert that “[g]eneric violence in Bangladesh is a major issue”, alone, is sad to be insufficient to amount to a claim, the consideration of which is made mandatory by the Migration Act. It is not a “substantial, clearly articulated argument relying upon established facts”[48], but merely eight words uttered in passing. Those words were never elaborated upon in proceedings before the delegate, either by the making of further submissions or the presentation of further evidence. The Migration Act requires merits review bodies exercising powers and functions thereunder “to determine whether the applicant’s claims are claims of a well-founded fear of persecution for one of the reasons set out in Article 1A(2) of the Refugees Convention.”[49] The asserted claim is said not to be such a claim.
[48] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ
[49] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [56] per Black CJ, French and Selway JJ
Fourthly, the Authority concluded, at [29][50], that it was not satisfied that there was a real chance that the applicant would face harm upon return to Bangladesh “for any other reason”. That conclusion was based upon “the applicant’s claims and profile” and was in the Minister’s submission sufficient to capture the applicant’s asserted claim[51], it not having been supported by any evidence or submissions such as to warrant any further analysis by the Authority.
[50] CB 217
[51] Cf Minister for Immigration v Yusuf (2001) 206 CLR 323 at 353 [91] per McHugh, Gummow and Hayne JJ; Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [47] per French, Sackville and Hely JJ
Ground 1: illegal departure
The applicant claimed to fear persecution because, relevantly, he had departed Bangladesh illegally. That claim was dealt with in the Authority’s reasons at [27][52], the Authority finding that it was “not satisfied that the applicant, if he returned to Bangladesh, would face a real chance of harm for having illegally departed Bangladesh”. In reaching that conclusion, the Authority made the following observations and findings:
a)country information published by DFAT provided that, if a citizen of Bangladesh were to emigrate, attempt to emigrate or depart Bangladesh other than in accordance with that country’s legislation, he or she may face a term of imprisonment of up to one year or a fine;
b)DFAT was not, however, aware of these penalties being enforced. In other words, there existed no evidence to demonstrate that they were being enforced by the Bangladeshi authorities.
c)DFAT assessed that people who returned to Bangladesh, voluntarily or involuntarily, were unlikely to face adverse attention or be reported by airport authorities to the Bangladeshi authorities “beyond the normal processes whereby returning nationals have their entry and exit from Bangladesh recorded”;
d)even if it were to become known to the authorities that the applicant had sought asylum in Australia, there was no information before the Authority to indicate that “the Bangladesh authorities respond adversely to citizens who seek asylum abroad” or that those who seek asylum “are treated adversely by any other actor upon return to Bangladesh, or that the … authorities would [take] action against the applicant for departing illegally”.
[52] CB 216
The Minister submits that it is not correct to say, therefore, as the applicant says in his submissions, that the Authority “failed to consider whether in the reasonably foreseeable future the applicant would be returning to Bangladesh under the threat of a penalty for illegal departure.” It was not satisfied that there existed a real risk of the applicant facing such harm. In other words, the question posed by the applicant was answered in the negative.
Moreover, based on the Authority’s findings at [27][53], any harm that the applicant may have faced for reason of his illegal departure from Bangladesh, namely, being imprisoned for one year or fined for contravening that country’s domestic law, would not have amounted to anything more than what Brennan CJ described in Applicant A v Minister for Immigration[54] as “punishment of a non-discriminatory kind for contravention of a criminal law of general application.” Such laws, his Honour held, “are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of ‘refugee’”[55]. The Emigration Ordinance is such a law. The material to which the Authority referred at [27][56] did not indicate that this law is applied or enforced selectively.
[53] CB 216
[54] (1997) 190 CLR 225 at 233
[55] see also Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 at 301 [19]-[21] per Gleeson CJ, Gaudron, Gummow and Hayne JJ
[56] CB 216
Still further, and contrary to the applicant’s submissions, the judgment of Spender, Dowsett and Selway JJ in SGKB v Minister for Immigration[57] is inapposite to the facts of the present case. In that case, the Refugee Review Tribunal had made a series of errors (discussed by their Honours at [20]-[23]), none of which was made by the Authority. In particular, like the applicant in SZDVA v Minister for Immigration[58], the present applicant did not provide any evidence to the Authority “to indicate any serious harm on the basis of the fear itself, nor that [he] put his claim to refugee protection in this way”[59]. Indeed, he had not even raised a claim, expressly or impliedly, before the delegate or in a submission to the Authority that he feared persecution on the basis of his being a failed asylum seeker; that was an issue identified by the Authority. As her Honour went on to say in SZDVA (also at [22]), “[i]n these circumstances, it was not incumbent on the Tribunal to consider whether the fear of such harm itself constituted persecution and the circumstances considered by the Full Court in SGKB are distinguishable on this basis.” Nor was it incumbent upon the Authority to do so.
[57] (2003) 76 ALD 381
[58] [2005] FCA 1671
[59] at [22] per Stone J
Ground 2
The Minister’s short response to this ground is that there was no document or information before the Minister to which a certificate issued pursuant to s.473GA(1) pertained. That is because no such certificate was issued. As deposed in the affidavit of the delegate, Mr Johnson, made on 25 November 2016, the document contained at CB 151 was a draft certificate which, ultimately, was not issued but which was left on the applicant’s file. It had been prepared erroneously. No document or information of the kind described in ss.473CB(1)(a)-(d) was withheld from the Authority. It is said to follow that the applicant cannot demonstrate that some document or information that would otherwise be provided by the Secretary to the Authority pursuant to s.473CB(1) was not provided in the present case. That, in turn, is said to have the result that the applicant cannot demonstrate that the Authority failed to comply with its duty under s.473DB(1).
Resolution
Jurisdiction
As with decisions of the Administrative Appeals Tribunal made pursuant to ss.349(2) and 415(2) of the Migration Act, this Court has jurisdiction under s.476 to entertain reviews of decisions of the Authority made pursuant to s.473CC(2), being migration decisions as defined in s.5(1)[60].
[60] see AFK16 v Minister for Immigration & Anor (No 2) [2016] FCCA 1827
The legislative regime
Before dealing with the applicant’s grounds of review, it is convenient to set out some of the key features of the statutory framework.
The Fast Track Assessment Process (FTAP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of the FTAP is to provide an efficient and cost-effective means of processing the protection visa applications of those who arrived in Australia as unauthorised maritime arrivals (UMAs) on or after 13 August 2012 and before 1 January 2014.
A person who is subject to the FTAP is a “fast track applicant”—a concept defined in s.5(1). It is not in dispute that the applicant was one such applicant.
A person is a “fast track review applicant” if he or she is a “fast track applicant who is not an excluded fast track review applicant”[61]. It is not in dispute that the applicant was a fast track review applicant.
[61] Section 5(1)
Subject to certain exceptions which are not relevant for present purposes, a “fast track decision” is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Once again, there is no dispute that the delegate’s decision was a fast track decision.
Part 7AA of the Migration Act establishes a comprehensive scheme of review with respect to certain decisions to refuse to grant protection visas to fast track applicants.
Division 8 of Part 7AA[62] establishes the Authority, the body conducting reviews of fast track reviewable decisions.
[62] Sections 473JA-473JF
Division 2 of Part 7AA[63] sets out the procedure for referring reviewable decisions to the Authority.
[63] Sections 473CA-473CC
Under s.473CA, the Minister must refer a “fast track reviewable decision” to the Authority as soon as reasonably practicable after the decision is made. A fast track reviewable decision is defined in s.473BB as, relevantly, a fast track decision in relation to a fast track reviewable applicant.
Once the Minister has referred a fast track reviewable decision to the Authority, s.473CB requires the Secretary of the Department to give to the Authority certain material in respect of each decision at the same time as, or as soon as reasonably practicable after, such referral, namely:
a)a statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and gives the reasons for the decision;
b)material provided by the “referred applicant” (defined in s.473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under s.473CA) to the decision-maker before the decision was made;
c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; and
d)the applicant’s contact details.
Subsection 473CC(1) requires the Authority to review a fast track reviewable decision referred to it. Subsection 473CC(2) provides that the Authority may either affirm the decision or remit it to the Minister for reconsideration in accordance with such directions or recommendations as are permitted by the Migration Regulations 1994 (Cth).
Division 3 of Part 7AA[64] deals with the manner in which reviews are to be conducted by the Authority.
[64] Sections 473DA-473DF
Subsection 473DA(1) provides that Division 3 of Part 7AA, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the [Authority]”. It is important to note that this provision is couched in broader terms than ss.357A(1) and 422B(1) and appears to operate to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the Authority[65].
[65] AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12] per Judge Cameron
Subsection 473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the Authority under s.473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.
However, s.473DC(1) permits the Authority, subject to Part 7AA, to “get any documents or information” (called “new information”) that “were not before the Minister when the Minister made the decision under section 65” and “the Authority considers may be relevant”. Subsection (2) confirms the discretionary nature of the power in subsection (1) by providing 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 or by any other person, or in any other circumstances”.
However, new information can only be considered by the Authority if the requirements of s.473DD are satisfied. Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the Authority must not consider any new information unless:
a)the Authority is satisfied that there are exceptional circumstances to justify considering that information; and
b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by him or her, the new information:
i)was not, and could not have been, provided to the Minister before the Minister made the decision under s.65; or
ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Subsection 473DE(1) imposes certain disclosure obligations on the Authority in relation to new information not dissimilar to those imposed on the Administrative Appeals Tribunal by ss.359A and 424A.
Division 5 of Part 7AA contains provisions relating to the exercise of powers and functions by, relevantly, the Authority. It suffices only to note s.473FA(1), which provides that the Authority, in carrying out its functions under the Migration Act, is to pursue the objective of “providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).” This reinforces the legislature’s aim of establishing a form of review that is limited in scope and efficient. Subsection 473FA(2) provides that, in reviewing a decision, the Authority is not bound by technicalities, legal forms or rules of evidence.
Ground 1 – generalised violence
I prefer the Minister’s submissions on the grounds of review advanced. In relation to the first part of Ground 1, I am not persuaded that a claim of generalised violence in Bangladesh was clearly articulated or clearly arose from the material. The transcript reveals that generalised violence was only referred to by the applicant’s representative as a way of distinguishing the present case which, she asserted, involved targeted political violence. Even if a claim of generalised violence had been put, there was no apparent nexus to the Refugees Convention. The claim would have hypothetically been relevant to a consideration of complementary protection, but nothing was advanced to point to the applicant having a profile different from that of the Bangladeshi community generally, except for his asserted political activities (which were considered).
Further, the fact that the delegate referred to the issue of generalised violence at [94] of his decision[66] did not impose on the Authority an obligation to consider the issue. The delegate had listed the applicant’s claims of persecution at [80][67] and those claims did not include a claim of generalised violence. I accept that the delegate considered the issue not only in relation to the application of the Refugees Convention, but also in relation to his complementary protection criterion assessment. In my opinion that consideration was not called for. If a delegate exceeds his statutory remit by considering claims not made by an applicant, no obligation of review is thereby created in relation to either the Administrative Appeals Tribunal or the Authority[68].
[66] CB 142
[67] CB 140
[68] Minister for Immigration v SZVCH [2016] FCAFC 127 at [42]
Illegal departure
The second part of the first ground relates to the application of the Emigration Ordinance. The Authority relied upon country information from the DFAT. The authority dealt with the relevant information at [27] of its reasons where it said[69]:
Available reporting indicates that a large number of Bangladeshi citizens engage in irregular migration.[70] Notwithstanding my concerns as to the applicant's credibility in other regards, I accept that the applicant departed Bangladesh by boat in an illegal manner to travel to Malaysia by boat and without a passport. DFAT reports that if a Bangladesh citizen emigrates, attempts to emigrate or departs Bangladesh other than in accordance with the Emigration Ordinance of 1982, they may face up to one year imprisonment or a fine. However, DFAT is not aware of these penalties being enforced.[71]I am not satisfied that the applicant, if he returned to Bangladesh, would face a real chance of harm for having illegally departed Bangladesh. DFAT assesses that people who return to Bangladesh, voluntary or involuntary, are unlikely to face adverse attention on their return. DFAT also reports that the return of failed asylum seekers is unlikely to be reported by airport authorities to the Department of Immigration and Passports, Ministry of Home Affairs or other agencies, beyond the normal processes whereby returning nationals have their entry and exit from Bangladesh recorded.[72] Even if it were to become known to the Bangladesh authorities that the applicant had sought asylum in Australia, there is no information before me to indicate that the Bangladesh authorities respond adversely to citizens who seek asylum abroad. There is likewise no information before me to indicate that Bangladesh citizens who seek asylum abroad are treated adversely by any other actor upon return to Bangladesh, or that the Bangladesh authorities would [take] action against the applicant for departing illegally. I am therefore not satisfied that the applicant, if he returned to Bangladesh, would face a real chance of harm for having illegally departed Bangladesh and/or for having sought asylum in Australia.
[69] CB 216
[70] UK Home Office, "Bangladesh December 2011", 23 December 2011, CIS3443, 25.01.
[71] DFAT, "DFAT Country Report Bangladesh 20 October 2014", 20 October 2014, CIS2F827D91369, 5.28.
[72] DFAT, “DFAT Country Report Bangladesh 20 October 2014”, 20 October 2014, CIS2F827D91369, 5.32.
During oral argument, the question was raised whether the Authority needed to consider what procedural steps would be taken in relation to the applicant on arrival at the airport. In my view, the Authority’s finding that the applicant would be processed at the airport and that it was unlikely that his irregular departure would be reported to the Bangladeshi Department of Immigration and Passports, the Ministry of Home Affairs or other agencies adequately dealt with that issue.
These findings by the Authority also provide an answer to the applicant’s assertion that the Authority needed to consider a fear of prosecution, even if there would be no prosecution. In circumstances where there was no evidence of anyone being prosecuted, and no real risk of the applicant being referred to the relevant authorities on return, the Authority was entitled to conclude that it did not need to expressly deal with fear of prosecution as an element of the harm feared by the applicant, as such fear would not rise to the level of serious or significant harm.
Ground 2
In relation to Ground 2, the applicant has not discharged his onus of establishing that any information was withheld from the Authority. Further, there is nothing to establish that the decision of the Authority was affected by any missing information[73]. I accept the evidence of Mr Johnson. It may be undesirable to leave on a file a draft or inoperative certificate but, in the present case, I am not persuaded that there was any consequence for the Authority’s consideration of the review.
[73] see SZOIN v Minister for Immigration [2011] FCAFC 38
Conclusion
The applicant has failed to establish that the decision of the Authority was 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 eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 1 February 2017
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