CWU20 v Minister for Immigration
[2020] FCCA 1499
•25 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CWU20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1499 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa (SHEV) – breach of s 91X of the Migration Act1958 (Cth) – whether a breach of s 91X of the Migration Act1958 (Cth) would amount to a jurisdictional error by the Authority – whether the Authority fell into legal error by misapplying the definition of receiving country as defined under s 5 of the Migration Act 1958 (Cth) – whether the Authority made factual assumptions and conclusions that were not support by evidence – whether the Authority failed to articulate the circumstances under which an undocumented person can be returned to a receiving country – whether there is jurisdictional error – no jurisdictional error made out – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 48B, 91X, 417 |
| Cases cited: AVN20 v Federal Circuit Court of Australia [2020] FCA 582 AZK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 331 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 EAU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2806 CDY15 v Minister for Immigration and Border Protection [2018] FCA 175 FER17 v Minister for Immigration and Border Protection, Citizenship and Multicultural Affairs (2019) 269 FCR 580 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | CWU20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1523 of 2020 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 9 June 2020 |
| Date of Last Submission: | 9 June 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 25 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Keller |
| Solicitors for the Applicant: | ABU Legal |
| Counsel for the Respondents: | Mr Fisher |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
Grant leave for the applicant to rely upon the amended application filed 12 May 2020.
The application is dismissed.
The applicant will pay the first respondent’s costs fixed in the amount of $10,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1523 of 2020
| CWU20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 25 January 2013, the applicant arrived in Australia as an unauthorised maritime arrival. On 27 February 2013, the applicant participated in an entry interview, at which he claimed to be a citizen of Bangladesh. The applicant claimed to have left Bangladesh in March 2009 because of financial problems and came to Australia because he heard that he could earn money and get a good job. In March 2013, the applicant provided identity documents to the Department, including a Bangladeshi citizenship certificate.
On 6 February 2017, the applicant applied for a Safe Haven Enterprise visa (SHEV), in which he claimed he was born in Bangladesh and was a Bangladeshi citizen. A delegate of the Minister for Immigration and Border Protection (“the delegate”) on 26 August 2019 refused to grant the applicant’s protection visa.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 23 September 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa. The applicant now seeks judicial review of the Authority’s decision.
Preliminary Issue
Prior to the commencement of the hearing, the Court was advised that the applicant’s identity may have been publicly disclosed, as a consequence of a flaw with the “Federal Law Search” facility, on the Commonwealth Courts Portal. The flaw affects a number of matters currently before the Court. This issue was drawn to the attention of the parties, given that the issue identified, constitutes a breach of s 91X of the Migration Act1958 (Cth) (“the Act”). Both parties, were invited to provide supplementary submissions in relation to any action that the Court should take in respect of the breach.
It was submitted on behalf of the applicant, that whilst the Act is silent on the consequences of “the breach”, a Court of “original jurisdiction” has the necessary power to administer relief to the applicant by issuing a writ of mandamus, directing the second respondent, the Immigration Assessment Authority, to rehear the applicants claims, inclusive of this s 91X of the Act breach, and the consequence he may face upon returning to the receiving country as a result.
It was submitted on behalf of the first respondent, that any breach of s 91X of the Act would not amount to a jurisdictional error by the Authority. Accordingly it follows, that a breach of s 91X of the Act would not lead to a remedy involving the grant of certiorari to quash the decision of the authority; (see EAU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2806) at [26] per Besanko J. This reasoning has been followed, by Kenny J in AVN20 v Federal Circuit Court of Australia [2020] FCA 582 (“AVN20”), where at [108] Kenny J had the following to say:
Section 91X creates a duty of imperfect obligation. Courts to which the prohibition is directed are under a duty not to publish the names of certain persons in relation to the proceedings to which the prohibition applies. The statutory obligation in s 91X does not support the conclusion that the Parliament intended that a courts failure to comply with the prohibition in the provision would invalidate the judgment of the court. Section 91X does not withdraw jurisdiction from the court on account of a breach on its part of the prohibition in s 91X.
If the applicant is correct, this Court would to have no option, other than to remit the matter to the Authority for rehearing, as a result of the breach. In effect, as pointed out by Kenny J above, the jurisdiction of the Court to hear the matter on its merits, would be a nullity. This does not mean however, that the applicant does not have remedies. As pointed out by Kenny J in AVN20 at [111], it would be open pursuant to s 48B of the Act, for the applicant to request the first respondent, to allow him or to make a further protection visa application. Further, under s 417 of the Act, the first respondent may substitute a more favourable decision, for an Authority decision in certain circumstances. As pointed out by Kenny J however, it is for the executive branch of Government, not the Courts, to decide whether that person’s position should be reconsidered, and ultimately whether permission to remain in Australia should be given.
Accordingly, while the breach of s 91X of the Act is unfortunate and to be regretted, it does not give rise to a requirement that the Court remit the matter to the Authority for further reconsideration.
The Immigration Assessment Authority’s Decision
Given that the limited nature of the single ground of appeal, it is not necessary to fully summarise the Authority’s decision. The applicant’s claims may be summarised as follows:
· The applicant was born in 1990 in Bangladesh. The applicant is of Bangladeshi ethnicity and a Sunni Muslim. The applicant attended high school until year 10.
· The area where the applicant’s family resided were not welcome by the local community as they were newcomers.
· Since 2000 the applicant’s family had been involved in a land dispute with previous owners.
· In 2006, the applicant started spending time with an extremist Islamic political and paramilitary group. They insisted the applicant join in activities but he refused, disagreeing with their violent means.
· In July 2006, the applicant was assaulted by five men from the organisation. The applicant managed to escape but understood the group planned to kill him.
· The applicant went to his grandmother’s house in another area but after returning home, the organisation found out and asked him to join with them again and became more aggressive. The applicant felt he could not survive in Bangladesh. In March 2009, the applicant travelled by boat to Malaysia, where he stayed until January 2013, then travelled to Australia.
Significantly, at paragraph 8 of its decision, the Authority recorded that there was “no issue as to the nationality the applicant”. The Authority accepted “the applicant is a national of Bangladesh and that Bangladesh is the receiving country for the purposes of the review”.
During the course of reviewing its evidence, the Authority noted there were significant discrepancies between the applicant’s protection visa application and the evidence given at his SHEV interview. The Authority found that the applicant was not assaulted as claimed, was of no interest to any political group when he departed Bangladesh, did not face a real chance of harm on account of his family’s land dispute nor did he face harm if returned as a failed asylum seeker.
At paragraph 40 of its decision, the Authority was not satisfied that the applicant faced a real chance of harm in Bangladesh, if he were to be returned. The Authority made similar conclusions in relation to the complimentary protection requirements.
Grounds of Appeal
Two grounds of appeal were relied upon. They are as follows (less particulars):
Ground 1
Jurisdictional Error - the Authority fell into legal error by misapplying the definition of “receiving country” as defined under s5 of the Act in that it did not determine whether the Applicant was of a national Bangladesh “solely by reference” to the law of Bangladesh.
Ground 2
Jurisdictional error - The Authority fell into error by making factual assumptions and conclusions that were not supported by evidence and by failing to articulate the circumstances under which an undocumented person can be returned to the receiving country.
The Applicant’s Submissions
In relation to ground one, notwithstanding the applicant claimed to be a citizen of Bangladesh, it is contended that in the absence of a Bangladeshi passport, the Authority erred in concluding the applicant was a Bangladeshi national, without reference to the citizenship and immigration laws of Bangladesh. Counsel for the applicant asserts that the applicant satisfied the definition of “receiving country”, pursuant to s 5(1)(b) but not s 5(1)(a) of the Act.
Counsel for the applicant submits that the Authority accepted the applicant departed Bangladesh unlawfully without a passport. However, the Authority failed to assess whether the fact that the applicant does not hold a Bangladeshi passport, would frustrate his removal to Bangladesh and whether the passport claim would constitute a substantial ground for believing that is a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk he would suffer significant harm. Complaint is made that the Authority gives no reason why it came to the conclusion the applicant is a national of Bangladesh. It is asserted that there is no conclusive evidence that the applicant is a national of Bangladesh.
Counsel for the applicant submitted, in oral submissions, that there was, in this case, a requirement in making any conclusion by the Authority, as to nationality and the applicable receiving country, to state that the conclusion was based “solely by reference to the laws of Bangladesh”.
In effect, Counsel for the applicant submitted that the Authority failed to make a proper consideration under s 36(2)(aa) of the Act, as to whether the applicant might suffer real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia. Reliance is placed on CDY15 v Minister for Immigration and Border Protection [2018] FCA 175 and FER17 v Minister for Immigration and Border Protection, Citizenship and Multicultural Affairs (2019) 269 FCR 580 (“FER17”). To deal with that question, it is submitted that the Authority was required to review Bangladeshi citizenship law or turn its mind to Bangladeshi laws, with respect to undocumented Bangladeshis and in the circumstances under which such persons will be permitted to enter the country as voluntary or involuntary returnees. It is conceded however, that the Authority does state that country information indicates that Bangladesh accepts both voluntary and involuntary returnees.
Counsel for the applicant submits that as a result, the Authority failed to deal with integers of the applicant’s claims as expressly articulated and accordingly, committed jurisdictional error.
In relation to ground two, Counsel for the applicant submitted that the Authority erred by:
(i) making assumptions and arriving at conclusions that were not supported by the evidence before the authority; and
(ii) by failing to articulate the circumstances under which the Applicant as an undocumented returnee will be granted the right to enter Bangladesh.
An Authority which makes a finding where there is ‘no evidence’ to support that finding makes an error of law. It was conceded however, in oral submissions, that ground two was dependant on ground one and fell away if the Court did not find in favour of the applicant, as regards to ground one.
The First Respondent’s Submissions
Counsel for the first respondent notes that the applicant consistently claimed he was a citizen of Bangladesh, supported by a citizenship certificate, which stated that he was “a citizen of Bangladesh by birth”. No claim was made that the applicant faced a real chance of harm returning to Bangladesh without a passport.
Further, the delegate found that the applicant was a Bangladeshi National and that Bangladesh was the receiving country. The applicant never sought to challenge is finding before the Authority. It was open for the Authority to accept the applicant’s claim to be a citizen of Bangladesh and it was not necessary for it to deal with any matter or claim, that he was not a citizen of Bangladesh. Accordingly, it was open to the Authority to accept the applicant’s claim to be a citizen of Bangladesh, an acceptance of that claim necessarily encompassed acceptance that he was considered to be a citizen, under the laws of Bangladesh.
The Authority did not find the applicant was merely entitled to Bangladesh citizenship. As a result, FER17 has no application (see AZK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 331 at [41] – [45] (“AZK18”) per Perry J).
In relation to ground two, the Authority discussed what could happen to the applicant upon return at paragraphs 37 – 40 of its decision. The Authority found the applicant faced no real chance of harm, based on country information that was available to it at paragraph 38 of its decision. The choice of country information was a factual issue for the Authority (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]).
Consideration
On 12 November 2019, orders were made by this Court to the applicant, to file and serve any written submissions on or before 7 April 2020. The first respondent was to file and serve written submissions by 21 April 2020. No submissions were filed by the applicant until 4 May 2020, the day before the hearing, notwithstanding that a reminder email was sent to the applicant’s solicitor on 9 April 2020 from Chambers.
The failure of the applicant’s solicitor to comply with the Court’s orders, given he has been in the matter since the very beginning, is extremely disappointing. It is discourteous to the Court and to the first respondent. The Court has read the applicant’s solicitor’s affidavit of 12 May 2020, which sets out the circumstances leading to the failure to lodge written submissions within the required timeframe.
Notwithstanding the material contained therein, the Court is not satisfied that an adequate explanation has been made for the failure to file submissions by the given time, or seeking an extension of time with the Court. The failure to seek an extension of time is, of itself, extremely discourteous. The fact that the solicitor did not seek to brief counsel for the hearing on 5 May 2020, until 9 April 2020, is evidence of a failure to properly prepare the matter for trial, given the direction of the Court made on 14 November 2019, were the applicant was to file and serve written submissions by 7 April 2019, two days before Counsel was briefed. The fact that the solicitor for the applicant suffered an accident on 16 April 2019 is unfortunate, but does not excuse the fact that submissions were not filed by 7 April 2019, in accordance with the Court’s orders.
As the submissions filed on 4 May 2019 made reference to a second ground of appeal, which had not been articulated up until that point of time, it was necessary for the matter to be adjourned from 5 May 2020, to 9 June 2020 for hearing in order for the first respondent to consider the new second ground of appeal. The issue of costs thrown away as a result will be considered separately.
In terms of the case itself, the function of the Authority is to respond to the case that the applicant advances (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [405] per Kirby J). Further, there is no general obligation on the Authority to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ). In Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187], per Gummow and Hayne JJ, the following was said:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether the claim is made out.
No claim was made before the Authority that the applicant was anything other than a citizen of Bangladesh. The first time any complaint was made with the issue of nationality, is before this Court. All the material before the Authority and indeed this Court, indicated that the applicant was a citizen of Bangladesh. This included within the Court book, a citizenship certificate (see Court book page 103) and a further document entitled “landless certificate” (see Court book page 104) that also indicates that the applicant is a Bangladeshi citizen. No claim was put forward that because the applicant did not have a passport, he would be unable to return to Bangladesh, as the receiving country or that he faced a real risk of harm returning without a passport. Counsel for the applicant specifically concedes the applicant, if he were not a citizen of Bangladesh, met the second part of the definition of a ‘receiving country’ contained within s 5 of the Act, being:
If the non-citizen has no country of nationality- a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
The Authority specifically found at paragraphs 37 – 40 of its decision, that Bangladesh accepts both voluntary and involuntary returnees. In coming to this conclusion, the Authority made specific reference to country information which was available to it. The Authority was satisfied, on the basis of that country information, that the applicant did not face a real chance of any harm in Bangladesh on the basis of having departed illegally, or being returned as a failed asylum seeker who had departed unlawfully.
To claim now that there was somehow an obligation on the Authority to conduct an inquiry, contrary to the cases cited above, to determine whether or not the applicant was a citizen of Bangladesh, by reference to Bangladeshi laws, is to the Court’s mind, misconceived. There was a body of significant evidence before the Authority to indicate the applicant was indeed a citizen of Bangladesh. No claims were made that the applicant would be unable to return to Bangladesh because he did not have a passport. The issue raised in FER17 has no relevance in this matter, as the Authority in this case found the applicant was a citizen of Bangladesh, not that he might be entitled to become a citizen of Bangladesh. The Authority was entitled to proceed in the way that it did on the findings that were open to it, on the evidence that was before it. This is made clear by Perry J in AKZ18, which is analogous to the present case. No jurisdictional error is made out in relation to ground one.
In relation to ground two, a similar situation exists. The Authority considered country information and particular, whether or not the applicant would face prosecution under the Bangladesh Emigration Ordinance Act, for his illegal departure from Bangladesh. The Authority found the applicant did not face any real risk of serious harm. The Authority was entitled to make its complimentary protection findings based on its previous refugee findings. There was significant evidence before the Authority, by way of country information, that is set out above to make this finding and the claim that it did, so on the basis of “no evidence” cannot be sustained. Ground two reveals no jurisdictional error.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 25 June 2020
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