CNL17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 144
Federal Circuit and Family Court of Australia
(DIVISION 2)
CNL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 144
File number(s): SYG 1809 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 1 March 2023 Catchwords: MIGRATION – Whether Immigration Assessment Authority erred in manner identified in AUS17 – whether exceptional circumstances to justify considering new information Legislation: Migration Act 1958 (Cth) ss 5H, 437DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
MZAPC v Minister for Immigration & Border Protection (2021) 390 ALR 590
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 23 August 2022 Place: Sydney Counsel for the Applicant: Mr P Bodisco Solicitor for the Applicant: Abu Legal Pty Ltd Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Mills Oakley ORDERS
SYG 1809 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CNL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
1 March 2023
THE COURT ORDERS THAT:
1.The application filed on 9 June 2017, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
By application filed with this Court on 9 June 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 30 May 2017 (Court Book (CB) 152 to 167) affirming a decision of a delegate of the first respondent (delegate) refusing to grant the applicant a Temporary Protection (Subclass 785) visa (visa).
BACKGROUND
The background to this matter is derived from the written submissions of the parties.
The applicant is a male citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 24 March 2013. On 19 April 2013 the applicant was interviewed by the Department of the first respondent. On 10 March 2016 the applicant was invited to apply for the visa and on 11 May 2016 (CB 24 to 75) the applicant applied for the visa (CB 36). On 18 November 2016 the applicant was requested to attend an interview with the delegate on 2 December 2016.
The applicant claimed to fear harm from the Awami League (AL). He claimed that his father was a member of the Bangladeshi National Party (BNP), that from a young age he used to see important political leaders meeting his father at his house, and that his paternal grandfather and uncle were also present at those meetings. The applicant claimed that although he grew up in a political environment he was not interested in politics but had a “soft corner” for the BNP. He claimed that during the election of December 2008 he was forcefully taken to a BNP rally (CB 12 and 154 at [9]). The applicant claimed that he subsequently started working for the BNP, became a dedicated party member and attended various rallies and meetings (CB 154).
The applicant claimed that his father had been involved with an election and that, because of this, AL workers concocted a false case against the applicant’s father to stop him from working for the BNP. The applicant also claimed that the AL had attacked his house and told him that if he continued to attend meetings or rallies, they would destroy his family (CB 67). The applicant said that, despite this, his involvement with the BNP continued.
At the end of December 2008 the applicant was allegedly kidnapped by AL cadres and held for two weeks until his father paid a ransom. He claimed that his parents tried to lodge a complaint with the police but were unable to do so. Instead this resulted in a “false case” also being brought against the applicant, which had the effect of “dooming” his political future (CB 68 and 154 at [7]).
The applicant stated that an agent helped him obtain a passport, following which he travelled to Malaysia in December 2008. While in Malaysia, AL supporters recognised him and, one night, they beat him and threatened to inform the Malaysian police about his illegal stay (CB 68 and 154 at [7]).
The applicant returned to Bangladesh in 2012 where he found the political situation had worsened. The applicant contends that after a week and half, he was beaten at a bazaar by AL cadres (to the point of unconsciousness), was subsequently taken to a nearby clinic and released after 7 days (CB 68 to 69 and 154 at [7]).
Shortly after the alleged 2012 beating incident an agent helped the applicant leave Bangladesh by boat in January 2013 CB 154 at [7]).
The applicant claimed that he came to learn from his father that, in May 2016, AL cadres had beaten his father and burnt his house. His father told him that it was not safe for him to return to Bangladesh (CB 71 and 154 at [7]).
The applicant claimed that if he were to return to Bangladesh, he would face imprisonment, torture and death (CB 71 and 154 at [7]).
On 18 November 2016 the applicant was invited to attend an interview with the delegate (CB 83). On 20 December 2016 the delegate refused to grant the applicant a visa (CB 83). On 5 January 2017 the matter was referred to the Authority. On 26 January 2017 the applicant’s agent sent submissions (CB 144 to 148), with the following supporting documents to the Authority (CB 137 to 148):
(a)a letter confirming the applicant’s membership with the BNP (CB 138);
(b)a receipt pertaining to his membership (CB 139); and
(c)a list of members (CB 141).
On 30 May 2017, the Authority affirmed the decision not to grant the applicant a visa (CB 152).
The Authority Decision
The Authority found that it could not consider new information in the applicant’s submissions and supporting documents because the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) were not satisfied (CB 153 to 154 at [3] to [6]).
The Authority found it implausible that the applicant would have been forced to join a rally of the BNP in December 2008, participate in rallies, seminars and meetings, have been kidnapped and held for two weeks after the December elections and then have left for Dhaka in order to travel to Malaysia, also in December 2008 (CB 155 at [10]).
The Authority noted that the delegate repeatedly asked the applicant to explain the ideologies of the BNP. The applicant was able to explain what the BNP flag looked like, but not what the flag stood for or symbolised. Given the applicant claimed that, from an early age, he had listened to political discussions in his family home, the Authority said it would have expected more than the vague and sweeping statements provided. The Authority did not find credible that someone who had such experiences would be unable to demonstrate a more substantive understanding of the BNP, beyond mere claims that the BNP is not corrupt and does not fight like the AL (CB 155 at [11] to [12]).
In relation to the applicant’s claim that a false case had been brought against his father to stop him working for the BNP, and that the AL workers had attacked their home, the Authority noted that when the delegate asked why he had not mentioned these events at the protection visa interview, the applicant responded that he had not been questioned him about them, so he did not raise them. The Authority was not satisfied that a false case had been brought against the applicant’s father, or that AL members came and attacked their house and told them not to participate in meetings or rallies. For the reasons summarised above, the Authority was not satisfied that the applicant was a member of the BNP. However, the Authority was willing to accept that the applicant supported the BNP in the past at a very basic level (CB 156 at [15] to [16]).
In his visa application the applicant claimed that toward the end of December 2008, he was returning home from shopping when he was kidnapped by a group of AL cadres. However this was not mentioned in his arrival interview. The Authority found that if the applicant had been kidnapped, detained and tortured he would have made some mention of this in the arrival interview. The Authority was not satisfied that the applicant was kidnapped by AL supporters and found the details given by the applicant at his protection visa interview to be vague and contrived. The Authority considered this particular claim to be a fabrication and did not accept that the applicant was kidnapped or that his father paid a ransom because he did not join the AL (CB 157 at [17] to [20]).
Having not accepted the applicant's claim to have been kidnapped, the Authority also did not accept that a false case had been brought against him or that he was prevented from obtaining a passport (CB 158 at [21]).
The Authority also did not accept the applicant’s claim to have been beaten or threatened in Malaysia by AL supporters including because the applicant made no reference to being beaten in his interview, only to having been threatened. The Authority was satisfied that the applicant resided and worked in Malaysia between 2009 and 2012, but was not satisfied that he was there because he was fleeing persecution. The Authority did not accept that the applicant was recognised by AL supporters as claimed in Malaysia and threatened and/or beaten as a result (CB 158 at [22] to [23]).
While the Authority acknowledged that the applicant had generally been consistent in his claim to have been beaten at a bazaar following his return to Bangladesh, it was not satisfied that this incident occurred as otherwise claimed. The Authority had concerns in relation to the applicant’s general credibility and found that, ultimately, it did not seem plausible that the AL cadres would have any interest in the applicant on his return after a three year absence, especially given his extraordinarily short lived political involvement of one month as a BNP supporter (CB 159 at [26]).
The Authority found that the applicant was not a BNP leader or member, nor would be imputed as such. The Authority was also not satisfied the he would resume his BNP support and/or association on his return to Bangladesh. The Authority found that there was no evidence that the applicant had continued to support the BNP while in Australia. The Authority did not accept the applicant’s claim to have been kidnapped by the AL, nor that there was a real chance that he would experience serious harm in the future (CB 161 at [34]).
The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act (CB 161 at [35]) and also was not satisfied that there was a real risk the applicant would suffer significant harm from the Bangladeshi authorities, or the AL, on his return to Bangladesh (CB 162 at [39]).
Application to this Court
The applicant commenced these proceedings by an application to show cause filed with the Court on 9 June 2017, which contained a single ground of review. The applicant was unrepresented at the time he commenced the proceedings. On 14 September 2017, the applicant appeared before a Registrar of the Court at a directions hearing at which orders were made, by consent, with a procedural timetable for preparation of the matter and listing it for final hearing before another Judge of this Court (first primary Judge) on 28 June 2019. On 27 August 2018, the matter was subsequently adjourned to be relisted on a date to be advised administratively. The matter was then listed for final hearing on 22 April 2020 before the first primary Judge. On 14 April 2020, due to the COVID-19 pandemic, the Court emailed the parties to ask whether the hearing could proceed by either video or telephone. In respect of the applicant, the email addressed used was that which he provided in the originating application. The email from the Court requested a response be provided by 17 April 2020. The applicant did not respond within the time requested and as a result the hearing was vacated. The matter was subsequently transferred to the central migration docket.
The matter was listed for a callover before a Registrar of the Court on 16 March 2022 on which occasion orders were made for the matter to be prepared for hearing. The matter was subsequently docketed to me. On 3 June 2022, the Registry notified the parties that the matter was listed for hearing on 12 August 2022. On 12 July 2022, the solicitor for the first respondent wrote to my Chambers requesting an adjournment on the basis that the first respondent’s Counsel was unavailable on the hearing date. I adjourned the hearing to 23 August 2022.
On 25 July 2022, a Notice of Address for Service was filed for the applicant by his newly appointed solicitors. On 11 August 2022, written submissions were filed for the applicant appending a proposed amended application upon which the applicant intended to seek leave to rely.
The first respondent filed supplementary written submissions on 16 August 2022, having already filing submissions in April of 2020.
At hearing, Counsel for the first respondent neither consented to, nor opposed, the granting of leave to the applicant to file and rely on the amended application. Given that the first respondent had in any event addressed the proposed amended application, I granted leave to the applicant to file and rely on the amended application (Amended Application) and I dispensed with the need to serve it.
By reference to the Amended Application the sole ground for consideration in this matter is as follows:
1.The IAA has failed to complete the task of jurisdiction embarked upon in dealing with new information in the form of a document (and translation) dated 1 December 2008 of a receipt for the payment of a BNP membership fee.
Particulars
By misdirecting itself at paragraph (6) of the decision that:
i)Section 473DD(b)(ii) of the Migration Act 1959 (Cth) did not apply; and
ii)The receipt “contradicts” evidence the Applicant has given during the PV interview:
the IAA failed to consider whether there were exceptional circumstances to justify considering the new information.
In essence, the applicant alleges that the Authority erred in the manner identified by the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17), by reference to [4] to [6] of its reasons for decision, in which it said the following:
4. On the 27 January 2017 the IAA received a submission from the applicant’s representative along with three documents including translations of two. The submission in part argues why the delegate’s decision was wrong. I do not consider that this argument amounts to new information. Some of the statement provides further explanation in response to certain inconsistencies that were put to applicant by the delegate in his protection visa (PV) interview. I consider this to be new information; however, I am not satisfied there are exceptional reasons to justify considering it under s.473DD. The applicant had the opportunity at his PV interview and afterwards to provide this information. The new information provides another version of events. The applicant was clearly on notice of the issues at his PV interview and he had an opportunity to respond then. He has provided no reasons now as to why this information was not given at his PV interview.
5. The submission also provides extracts of country information in support of the applicant’s claims. The information was not before the delegate and I consider this to be new information. The articles are not properly cited and their source is unclear. The submission did not explain why this information could not have been provided to the Minister before the decision under was made. The applicant provided no reason as to why this information should be considered credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims. I am not satisfied s. 473DD(b)(i) and (ii) are met.
6. The three documents attached to the submission are also new information. The first document (and translation) dated 1 December 2008 is a receipt for the payment of a BNP membership fee for the applicant. The receipt contradicts the applicant’s evidence given at his PV interview that he did not pay a membership fee. The second document (and translation) is a list of BNP members of the Dharmaphur Union Branch of Feni Sadar, Feni dated 10 December 2016 and the applicant’s name is on the list. The last document, in English dated 10 December 2016, is a letter from the BNP confirming the applicant was an active member of the BNP for one year which again contradicts his claims for protection. All three documents pre date the delegate’s decision. The applicant has not explained why the information was not and could not have been provided prior to the delegate’s decision or why it is credible personal information which was not previously know and had it been known would have affected the applicant’s claims. I am not satisfied as to matters in s.473DD(b) of the Act.
The issue itself is extremely narrow.
The applicant advanced three new documents before the Authority (CB 138 to 142 and see [12](a) to (c) above). The first respondent says that, for the reasons the Authority gave at [4] to [6], those documents were found to not be credible because they were inconsistent with the applicant’s claims.
For the applicant, it was submitted there was no basis to that finding of inconsistency. Particularly, in relation to the receipt for payment of a BNP membership fee, which the applicant says the Authority incorrectly found this to be inconsistent with the applicant’s evidence that he had not paid such a fee. Counsel for the applicant sought to make a distinction between the applicant having said that he himself did not pay such a fee, but that did not preclude the fact that this someone else had paid it for him.
Consideration
In AUS17 (supra) at 501 to 502 [11] to [12], 503 to 504 [16] and [18], Kiefel CJ, Gageler, Keane and Gordon JJ found that the Authority must first assess:
(a)whether new information obtained from a referred applicant met one or both criteria in s 473DD(b)(i) and (ii); and thereafter
(b)whether there were exceptional circumstances under 473DD(a).
If either (or both) of the s 473DD(b)(i) or s 473DD(b)(ii) criteria are met, the High Court in AUS17 found that to be a circumstance which must be factored into the subsequent assessment of whether the new information meets the exceptional circumstances criterion specified in s 473DD(a).
It is not suspiring that the Authority did not adhere to the structured approach which is clearly laid out in AUS17, given that its decision pre-dated AUS17 by some 3 years.
It is uncontentious to observe that at [4] of its decision, the Authority does not make reference to the substantive consideration required by s 473DD(b)(ii), and the first respondent concedes that the Authority appears not to have considered it in that paragraph. However, even absent consideration of s 473DD(b)(ii) of the Act at [4] of its reasons, as required by AUS17 at [11] to [12], such error is not be material, citing MZAPC v Minister for Immigration & Border Protection (2021) 390 ALR 590 (MZAPC) at [39]. The applicant bears the onus of showing any error by the Authority at [4] was material (MZAPC at [39]). The first respondent says the applicant has not discharged this onus.
In relation to the contention that it was not open to the Authority to conclude that the documents were inconsistent with some of the applicant’s earlier claims as a basis to find they were not credible, I reject that argument.
The first document (CB 138) is a letter which says that the applicant had been an active member of the BNP for one year. This was clearly at odds with the applicant’s version of events that he had joined the BNP in 2008 (which is also when the membership fee receipt is dated). The second document (CB 141) which is a membership list suffers from a similar malady insofar as it is dated 2016. In my view it was open to the Authority to find these documents to be inconsistent with the applicant’s claims.
Next, and while creative, the suggestion that the applicant’s earlier evidence was so nuanced as to mean that he had not paid a membership fee but someone had paid it for him is not borne out by the applicant’s own evidence. As the Authority later recorded at [13], the applicant’s claim had not been so precisely crafted. Rather, the applicant had claimed to not know that membership fees were required at all by saying that he was not aware of a fee, and had never been asked to pay one. This is a broader proposition than the hair-splitting version of events being advanced in this Court. Again, it was open to the Authority to make the findings that it did about the inconsistent nature of this document.
Turning then to the manner in which the Authority addressed the new information at [4] to [6] of its decision by reference to s 473DD, I accept the first respondent’s submission that, while not neatly packaged in AUS17 terms, the Authority did properly address s 473DD(b) in its reasons in respect of country information (CB 153 at [5]) and the three documents (CB 153 to 154 at [6]). To the extent the applicant contends that the Authority failed to consider whether there were exceptional circumstances, as the High Court observed in AUS17 at [11], where neither of the s 473DD(b) criteria are met then further assessment against s 473DD(a) is redundant. There is no error in the manner in which the Authority made its decision in that regard, by reference to the principles in AUS17, or at all.
In respect of [4], where the Authority made a very general reference to statements in the written submission which provided “another version of events”, the Authority did not go into detail as to what this was. The applicant has not sought before me to make good the suggestion that (to the extent the Authority may not have properly formulated its s 473DD assessment by reference to the language of the statute[1] and the process identified in AUS17) that this constituted an error which was material.
[1] Including its reference to there being “exceptional reasons” to consider justifying it, when s 473DD(a) prescribes for “exceptional circumstances”
I agree that the applicant has not discharged the onus in respect of establishing materiality (see MZAPC (supra) per Kiefel CJ, Gageler, Keane and Gleeson JJ at [39]). The applicant has not expressly set out the alleged error, such that it is impossible to even apply a counter-factual. Accordingly, to the extent that there is an error in [4] of the Authority’s reasons constituted by the Authority having failed to properly apply s 473DD, it has not been established as being material and therefore is not a jurisdictional error.
Absent a jurisdictional error, the decision of the Authority is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 1 March 2023
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