CEN16 v Minister for Immigration
[2018] FCCA 1263
•18 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEN16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1263 |
| Catchwords: MIGRATION – Application for review of a decision of the Immigration Assessment Authority – protection visa – IAA obliged to consider material without accepting or requesting new information – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 425, 473DB, 473DC, 473DD, 473DE |
| Cases cited: DGZ16v Minister for Immigration and Border Protection [2016] FCAFC 12 Minister for Immigration Border Protection v AMA16 [2017] FCAFC 136 |
| Applicant: | CEN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1686 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 18 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 April 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Mr Yuile |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1686 of 2016
| CEN16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application seeking review of a decision of the Immigration Assessment Authority (‘the IAA’) which upheld the decision of a delegate of the Minister to refuse the Applicant a Safe Haven Enterprise Visa (‘SHEV’).
The grounds of application were as follows:-
“1. The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.
2. The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant’s credibility was an important factor in the Second Respondent’s decision that he was not a refugee, and an oral interview can give an insight into a person’s credibility that is otherwise unavailable. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
3. I have made an application for assistance for Victoria Legal Aid and am waiting for a decision.”
Ground 3 of the application is not a proper ground of review and is dismissed. The Court’s consideration of this matter proceeds on the first two grounds of application, both of which are directed to a claim that the IAA denied procedural fairness to the Applicant. In response to those grounds of review the First Respondent submits that in the statutory framework for fast-track visa Applicants, the IAA met its procedural fairness obligations. Further, that there was no information that the IAA was required to put to the Applicant for his comment, and there was no obligation on the IAA to provide the Applicant with an oral hearing.
The parties were ordered to file and serve written submissions by orders made by Registrar Allaway on 1 February 2017. Whilst the First Respondent complied with that order, the Applicant did not. Nevertheless, the Applicant was given an opportunity this day to make oral submissions to the Court. The Applicant was assisted at the hearing of the application by an interpreter fluent in the Bengali and English languages. The interpreter translated for the Applicant the submissions of the First Respondent which were filed on 4 April 2018.
In oral submissions this day the Applicant was unable to address his own grounds of application in any meaningful way and submitted to the Court that, essentially, the IAA did not believe him; that it was not possible for him to get any other documents from his country; and that the Court should not send him back to his country. That it was for him, “better to die here in Australia”.
Background
The Applicant is a Bangladeshi citizen from the Jessore District. He arrived in Australia on 7 October 2012, having left Bangladesh and travelled through Malaysia and Indonesia en route to Australia. He arrived as an unauthorised maritime arrival at an excised offshore place and as such, was barred from making a valid application for a visa onshore. On 12 May 2015 the First Respondent lifted the bar in s.46A of the Migration Act 1958 (Cth) (‘the Act’) allowing the Applicant to make a valid visa application for a protection (Class XA) visa (‘the visa’). The application was received by the Department of Immigration and Border Protection (‘the Department’) on 15 September 2015.
The Applicant’s claims
In his entry interview the Applicant claimed to have left Bangladesh because he feared harm arising from a relationship he had with a girl in his hometown. He claimed that the relationship had been secret because the girl was rich and he was poor and the Applicant thought that the girl’s father would object. He claimed that they became close and wanted to get married.
The Applicant claimed that when the girl’s family, which comprised the girl, one sister, three brothers and the girl’s parents, found out about the relationship, they told the girl that they would not allow her to marry the Applicant. The Applicant claimed as a result the girl committed suicide. The girl’s family blamed the Applicant for this and the Applicant claimed the girl’s brothers beat him up, not using weapons but using their hands and feet, until he became unconscious. He claimed they further threatened to kill him. He fled Bangladesh because of the assault and the threats.
When the Applicant applied for the SHEV he attached a statutory declaration that expanded on his claims. A delegate of the Minister for Immigration and Border Protection (‘the delegate’), in a decision dated 16 June 2016, set out in paragraph 6 of that decision a summary of the protection claims made by the Applicant. These claims were before the delegate prior to the protection visa interview of 2 February 2016. The expanded claims included that the Applicant and girl met secretly over a period of two years before, in June 2012, the girl’s family found out about the relationship. In July 2012, the Applicant claimed two of the girl’s brothers and three other unknown persons came to his shop and without saying anything, beat him up and damaged the shop. The Applicant was hospitalised for about a week. When the Applicant was in hospital his brother told him that the girl had committed suicide, that the family blamed the Applicant for what had happened and had vowed to kill him. The Applicant fled the country shortly afterwards.
Additionally, in this statutory declaration referred to in the preceding paragraph, the Applicant claimed that he faced threats of violence because of his political affiliations. The Applicant claimed to be a member of the Bangladesh Nationalist Party (‘BNP’) and his family were members of BNP or an affiliated party, Jaamate Islami. He claimed to be involved in elections working in local offices, attending rallies, doorknocking, handing out flyers and assisting in organising political events.
The Applicant claimed that the ruling Awami League had assaulted his brothers. He did not claim to have been attacked himself. He claimed that when one of his brothers who was assaulted went to the police, the police did not assist him. The Applicant claimed that the family of the girl with whom he had the relationship were Awami League supporters who were very influential due to their wealth. He claimed that he feared the girl’s family would use their influence in the Awami League to target him because of his relationship with the girl as well as exacerbate the threat of violence toward him because of his family’s and his membership of the BNP and Jaamate Islami political parties.
The delegate refused the application for the SHEV. In paragraph 66 of the decision record the delegate said:-
“In summary:
· I do not accept that the applicant has a relationship as claimed. It follows that I do not accept that subsequent events arising out of the claimed relationship occurred.
· I accept that he was a supporter of the BNP out of expediency but without any other political involvement or profile to expose him to the risk of harm.
· I do not accept that the applicant was pursued or tracked to Malaysia by the girl’s family seeking revenge.”
The above last finding of fact related to the Applicant’s claim that his girlfriend’s family, who were intent on extracting revenge, had found out he was in Malaysia and aimed to harm him there. He claimed they were well-connected and resourceful and he feared being harmed by them or their agents in Malaysia.
The case was referred to the IAA. The Applicant did not make any additional submissions or provide any additional material to the IAA.
The findings of the IAA are accurately set out in paragraph 12 of the submissions of the First Respondent as follows:-
a)the IAA did not accept that the Applicant was in a secret close relationship with the girl for a four year period. At best, the IAA accepted that the Applicant may have spoken to the girl occasionally – interactions “of an occasional ad-hoc nature”;
b)it followed that the IAA did not accept that the Applicant was beaten by the girl’s family or that the family was looking for him to seek retribution. The IAA also did not accept that the family would use Awami connections to harm the Applicant;
c)the IAA accepted that the Applicant was a BNP supporter, “whose political involvement was limited to the time the BNP was in power prior to the 2008 election and that he ceased any further involvement after an incident at his home”;
d)the IAA also accepted that the Applicant’s father and brothers had some political involvement;
e)however, the IAA did not accept that the Applicant’s past political involvement indicated any real chance that he would suffer significant harm for that reason. That followed from his low-level participation from his cessation of those activities after 2008, and his safe and unthreatened residence in the family home for four years after his involvement ended;
f)the IAA found that “supporters or members of political parties are not at risk on a daily basis due to their political affiliation”. The IAA found that the Applicant would not be impugned with BNP membership nor would he be targeted for his past involvement. The IAA also did not accept that the Applicant would be politically active if returned to Bangladesh as he was not a dedicated and proactive member, and had not been politically involved since 2008.
The IAA concluded the Applicant would not be at risk of harm if he returned to Bangladesh for any of his claimed reasons either as a matter of the refugee criteria or the complementary criteria.
Consideration
Within the legal framework of Part 7AA of the Act the IAA is obliged to review relevant decisions by considering the review material provided to it “without accepting or requesting new information” and “without interviewing the referred Applicant”.[1] As was said in Minister for Immigration Border Protection v AMA16 [2017] FCAFC 136 at paragraph 19:-
“…the review is generally conducted on the papers and focuses on the review material provided by the Secretary to the IAA.”
[1] Migration Act 1958 (Cth) s 473DB(1).
Sections 473DB, 473DC and 473DD of the Act are relevant and as follows:-
“MIGRATION ACT 1958 - SECT 473DB
Immigration Assessment Authority to review decisions on the papers
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
MIGRATION ACT 1958 - SECT 473DC
Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment 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.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give newinformation:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
MIGRATION ACT 1958 - SECT 473DD
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any newinformation given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 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.”
In addition to the above, is s.473DE of the Act which provides that it is only if the IAA gets new information that has been or is to be considered by the IAA, and that information would be the reason or part of the reason for affirming the decision that the IAA must give the Applicant particulars of the information and invite a response.
In the facts of this matter, the Applicant made no additional submissions to the IAA. The Applicant presented no new information. The IAA obtained no further information of its own accord. The IAA considered the same issues that had been alive before the delegate and made findings of fact in relation to those issues. Such findings were open to the IAA on the evidence before it. Those facts and the relevant legislation mean the Applicant cannot succeed.
As referred to in the First Respondent’s submissions, and relevantly to the alleged grounds of review here, the Full Court of the Federal Court of Australia said in DGZ16v Minister for Immigration and Border Protection [2016] FCAFC 12 at paragraph 72:-
“In our opinion, 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. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the Appellant with an opportunity to respond.”[2]
[2] See also DGZ16v Minister for Immigration and Border Protection [2016] FCAFC 12, 74-75.
Further, there is no obligation on the IAA to invite the Applicant to give and to receive new information via an interview. Indeed, s.473DB(1)(b) of the Act, as stated in paragraph 18 above, expressly states that the IAA is to review the decision “without interviewing the referred Applicant”. Part 7AA of the Act provides no equivalent to s.425 of the Act.
Like the delegate’s decision, the IAA’s decision turned on the Applicant’s credibility. That, of itself, did not oblige the IAA to invite the Applicant to a hearing.
I conclude no jurisdictional error attends the decision under review and the application is without merit. It must be dismissed. Costs shall follow that event.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 17 May 2018
0
2
2