CGX19 v Minister for Immigration - [2020] FCCA 421

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGX19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 421

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s decision not to exercise its discretion under s.473DC of the Migration Act 1958 (Cth) was unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 473DD, 476

Cases cited:

EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462

Applicant:

CGX19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1416 of 2019

Judgment of:

Judge Street

Hearing date:

26 February 2020

Date of Last Submission:

26 February 2020

Delivered at:

Sydney

Delivered on:

26 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr P Bodisco

Solicitors for the Applicant:

Abu Legal

Solicitors for the Respondents:

Mr L Leerdam
Mills Oakley

ORDERS

The amended application filed on 14 February 2020 is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 26 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1416 of 2019

CGX19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt.7AA of the Act made on 16 May 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.
The applicant arrived in Australia as an Unauthorised Maritime Arrival on 27 August 2013.
The applicant was found to have been born in a particular village in the Chittagong Province and to be of Bengali ethnicity and of the Muslim faith.
The applicant alleged that he attended public meetings and local gatherings held by the Bangladesh National Party (“BNP”). The applicant also claimed that his father was a BNP member who fled Bangladesh in 2013 and that his brother had been detained for several months. The applicant also alleged that he had been beaten by Awami League (“AL”) supporters when attending a BNP rally, and that it was for these reasons that he fled Bangladesh. The applicant claimed that he will continue to support the BNP if he returns to Bangladesh and that he fears he will be harmed by supporters of the AL.
The applicant also claimed harm by release of certain details by the data breach when he was held in detention.
On 2 April 2019 the Delegate made a decision not to grant the applicant a Safe Haven Enterprise visa.
On 8 April 2019, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a fact sheet and Practice Direction giving the applicant an opportunity to provide new information and submissions. New information and submissions, dated 3 May 2019, were provided to the Authority and referred to in the Authority’s reasons.
The Authority identified the background of the Safe Haven Enterprise visa application and regarded the new information provided under s.473CB of the Act. The Authority identified new information and considered the same in accordance with the requirements under s.473DD of the Act.
The submissions that were advanced to the Authority dated 3 May 2019 relevantly said: ‘We asked the IAA to consider interviewing the applicant in light of the new aspects of his claim.’
Attached to the submissions dated 3 May 2019 were a number of documents, including a statutory declaration, which was identified under the heading ‘New Information’ in para 4, together with other new information.
The submissions sought to advance why the new information was critical information which was not previously known and contended that there were exceptional circumstances justifying considering all new information introduced.
The Authority in its reasons referred to the request. The Authority noted that the applicant’s submissions did not elaborate on what the applicant would wish to add at an interview or why this could not have been put in writing.
The Authority also noted that the applicant had been on notice in his dealings with the Delegate of the need to provide evidence and to satisfy the Delegate in respect of the determinative matters in question.
The Authority also took into account that the applicant was represented at the Safe Haven Enterprise visa application and in the interview. The Authority was satisfied that the applicant had had a fair opportunity to provide evidence and put his case in relation to all relevant matters.
The Authority added, “Further to this”, and made reference to noting that:
…the applicant was advised and notified that it was his responsibility to provide all his information as early as possible and that the IAA would only consider material provided to it by the Department on referral of the decision unless exceptional circumstances applied.
The Authority then concluded:
I have therefore not exercised my discretion under section 473DC to get any new information from the applicant.
It is this part of the Authority’s reasons that are alleged to be the subject of error and to which the Court will turn.
The Authority identified the applicant’s claims.
The Authority was satisfied that the applicant attended many local events for BNP supporters and country information supports that violence between supporters of BNP and AL was, at the relevant time, commonplace. The Authority noted that the applicant remained at his home for a further month after the event concerned of and indicated there were no further actions against him by AL supporters. The Authority concluded that the applicant was not of any interest to AL activists and supporters.
The Authority did not accept the applicant’s family were targeted due to their support of the BNP or any membership of the BNP or student wing of the BNP, the Bangladesh Jatiotabadi Chatra Dal (“the JCD”).
The Authority referred to the data breach and noted that the applicant contended that release of his data will lead to his jailing upon return to Bangladesh, having spoken negatively about the Bangladeshi government. In this regard, the Authority noted that the details of the applicant’s protection claim were not part of the report that was released.
The Authority accepted that the applicant may be identified as a person who sought asylum in Australia upon return to Bangladesh.
The Authority concluded that the applicant does not have a well-founded fear of persecution on the basis of any actual or imputed political opinion.
The Authority was not satisfied that the applicant faced a real chance of any harm in Bangladesh on the basis of having departed illegally.
The Authority was not satisfied that the applicant faced a real chance of harm in Bangladesh on the basis of having made an application for asylum in Australia.
The Authority found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act. The Authority found that the applicant did not meet s.36(2)(a) of the Act.
The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Bangladesh from Australia, there is a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not meet s.36(2)(aa).
Accordingly, the Authority affirmed the decision under review.

The ground

Ground 7 of the amended application is as follows:
GROUND SEVEN:
By failing to provide an intelligible reason for its failure to consider using its powers pursuant to section 473DC of the Migration Act, the IAA made a decision so unreasonable that no reasonable person would have made it.
Particulars
a.In dealing with the “data breach” claim advanced by the Applicant, the IAA has made a decision so unreasonable that no reasonable person would have made it by failing to consider utilising its powers pursuant to section 473DC to invite the Applicant to respond to its finding that there was no information before it to suggest that the authorities in Bangladesh had accessed his personal data – despite the delegate having found at [CB 214] to the contrary;
b.In dealing with the “data breach” claim advanced by the Applicant, the IAA has made a decision so unreasonable that no reasonable person would have made it by failing to consider utilising its powers under s473DC to put the applicant on notice as to country information it held and which were material to its findings at paragraph [21] of the decision.

Ground 7

Mr Bodisco, counsel on behalf of the applicant, submitted that the Authority, in para 9 of its reasons, had made an error of the kind identified by the learned Thawley J in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (“EMJ17”) and that on a proper and fair reading of the Authority’s reasons, the Authority had required the existence of exceptional circumstances in order to exercise the discretion under s.473DC of the Act.
Reference was also made to the decision of the learned Moshinsky J at 64 in EBY17 v Minister for Immigration and Border Protection [2019] FCA 222.
Mr Bodisco submitted that the Court was bound by the decisions in those cases, that they were not distinguishable and that there had been an error of the kind by the Authority in substance requiring exceptional circumstances before the discretion under s.473DC of the Act could be exercised.
Notwithstanding the skilful submissions of Mr Bodisco in this regard, the facts in each of those cases are clearly different in respect of the reasons of the Authority. The principle identified is clearly binding on this Court. It becomes a question of a fair reading of the Authority’s reasons as to whether an error of the kind identified by the learned Thawley J in EMJ17 has occurred in the present case by the Authority.
The first respondent submitted that the Authority was identifying in para 9, prior to the concluding sentence, a combination of factors to be taken into account in relation to the general discretion to get information under s.473DC of the Act. The first respondent in that regard made reference to the clear identification of the whole of the limbs of 473DD of the Act in para 3, in the evaluation by the Authority in para 9 and following of the requirements of s.473DD of the Act.
Those reasons clearly identify that the Authority appreciated that s.473DD of the Act was concerned with “considering the new information”. The penultimate sentence, the Court finds in the circumstances of the present case, was that a recitation of a historical factor referable, together with the other factors, to the consideration of the discretion in the use of the reference “I have therefore” and is not supportive of the proposition that the Authority regarded its discretion as requiring the existence of exceptional circumstances before it could be exercised under s.473DC of the Act.
In this regard, the Court considers that the reference by the Authority correctly describing “my discretion under section 473DC to get any new information from the applicant” is entirely consistent with the Authority’s understanding that there was a general discretion. For these reasons, the Court regards each of the cases that have been identified by the learned Mr Bodisco as distinguishable and that this is not a case where the error of the kind identified by the learned Thawley J has occurred.
Accordingly, no jurisdictional error of the kind alleged in ground 7 has been made out.
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the published oral reasons for judgment of Judge Street delivered in open Court on 26 February 2020 and the parties were provided sealed copies of the Court’s orders

Associate:

Date: 23 April 2020