CYJ17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 829

Federal Circuit and Family Court of Australia

(DIVISION 2)

CYJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 829

File number(s):

SYG 2083 of 2017

Judgment of:

JUDGE LAING

Date of judgment:

13 October 2022

Catchwords:

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority not to grant a Safe Haven Enterprise (Class XE) (subclass 790) visa – whether the Authority failed to consider or misconstrued claims or evidence, denied the applicant natural justice, asked irrelevant questions, unreasonably raised doubt or otherwise acted in excess of jurisdiction – whether the Authority’s decision was the same or similar to the delegate’s decision – whether the Authority materially erred in applying s 473DD – application dismissed

Legislation:

Migration Act 1958 (Cth) s 473DD

Cases cited:

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441

Division:

Division 2 General Federal Law

Number of paragraphs:

33

Date of hearing:

5 September 2022

Counsel for the Applicant:

The applicant appeared in-person

Counsel for the First Respondent:

Ms N Case

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 2083 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CYJ17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	13 October 2022

THE COURT ORDERS THAT:

1.The application be 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

1. Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

   background

2. The applicant is a citizen of Bangladesh. He arrived in Australia as an authorised maritime arrival on 30 January 2013.

3. On 20 June 2016, the applicant applied for a protection visa.

4. On 8 December 2016, the applicant attended an interview in relation to his protection visa application.

5. On 23 December 2016, the Delegate refused to grant the applicant a protection visa. The applicant’s case was then referred to the IAA for review.

6. On 14 June 2017, the IAA affirmed the Delegate’s decision not to grant the applicant a protection visa.

   the iaa’s decision

7. The IAA observed that new information had been received with submissions dated 27 January 2017 (at [4]-[7]). This included further information about an agent who was claimed to be an Awami League member to whom the applicant had paid money in order to be taken overseas, which had not occurred, resulting in a dispute (the Agent). It also included country information relating to the applicant’s claim to have taken part in a protest, and a news article regarding Awami League supporters attacking Hindus (BD News Article).

8. The IAA considered that the new information about the Agent contradicted the applicant’s evidence given at interview and that it was not apparent why it had not been provided earlier. The IAA was not satisfied that exceptional reasons justified consideration of this new information. The IAA was also not satisfied that the requirements of s 473DD were met in relation to country information that pre-dated the Delegate’s decision (at [4]-[7]).

9. The IAA accepted that the applicant was Hindu and a national of Bangladesh (at [9]-[10]).

10. However, the IAA did not accept:

    (a)that the applicant had been subjected to discrimination or serious harm because of his religion (at [11]).

    (b)that the applicant faced a real chance of relevant harm on the basis of any political affiliation, expressing its findings on this claim as follows:

    19.I am not satisfied the applicant was pressured by AL activists to join their party. I am not satisfied that he was beaten at… college by a group of AL activists because he attended a JI protest. The applicant in general appeared confused at times when being questioned by the delegate when presenting his evidence. He was unable to provide specific dates and at times appeared to have forgotten what was contained within his statement of claims. There is more evidence to suggest that he completed his education in September 2006 (arrival interview, PV application and statement of claims.) I have considered whether the passage of time since the claimed events would explain his confusion, omissions or contradictions but I am not satisfied that it has. I am not convinced that he ever commenced as a student at the [college]. The applicant seemed to contradict himself at his PV interview initially stating he ceased his education in 2006 and then, not long after claimed to have enrolled in further education. I also find it rather improbable that none of his college friends were on campus the day he was attacked or that the AL activist would not continue to seek out those who had specifically beaten them. The applicant was not part of any political party.

    20.… I consider it plausible the applicant could have attended a protest during this period; however, I am not satisfied he went to a number of JI protests and meetings as claimed throughout 2007 and 2008. Given the applicant has at least been consistent in his claim that he did attend a protest with his JI friends I am willing to accept he has done so in the past. I am not however satisfied as a result of attending a protest he was threatened by AL activists or beaten up as a result. Nor am I satisfied the applicant would be of any interest to AL activists some nine to 10 years after attending a protest.

    21.I am also not satisfied that the applicant has a fear of serious harm from [the Agent] for reason on any ground mentioned in s.5J(1). This dispute appears to have been a private matter relating to [the Agent]’s failure to provide a service for which the applicant paid for and then [the Agent]’s refusal to return his money. Given that this dispute occurred around 2007 and 2008 and the applicant did not leave Bangladesh until 2011 and nothing happened to him during that time I am also satisfied that there is not a real chance that this prior dispute will cause him any harm in the future.

    (c)that the applicant experienced harassment from Awami League activists while working at his brother’s shop. The IAA stated at [24]:

    24.I am not satisfied the events described in his statement of claims happened to the applicant. His evidence was extremely vague consisting of generalised sweeping statements about threats and this family being scared, it lacked any substance or specific detail. I also consider it nonsensical that the Chairman would have prevented them from going to the police given at that stage the AL was not in power. I find the applicant was not threatened at his brother's bakery as claimed by AL activists nor did he seek the assistance of the Chairman of their village…

    31.I do not accept the applicant’s claim that after the election the AL cadres continued to come to the applicant’s store and threaten him that they would show him no mercy. I do not accept that between 2009 and 2011 AL cadres tried many times to convert them to Islam and take over their store, attack their home at night and threaten them. Firstly, I am not satisfied that the applicant is a credible witness. Secondly, on the applicant’s own evidence his brothers continue to work in the family businesses today and nothing has happened to them.

    (d)the applicant’s claims relating to demands for political donations, expressing at [28]:

    28.I am not satisfied these events happened as claimed. Again I find it questionable the applicant was unable to recall the date. In a post interview submission the applicant confirmed the date of the election as 29 December 2008 and that it was originally scheduled for January 2007 but it was postponed. He said he could not remember the actual date at his interview because he became so nervous. I do not accept this answer. The applicant was elusive in relation to all requests for specific dates throughout his PV interview. I have considered what effect the passage of time had on the applicant's recall of events but given the applicant's lack of credibility I am not satisfied that time has had any impact. At times the applicant appeared to be contriving his evidence as he went along having forgotten his statement of claims. Again I do not accept that the police would have refused to take the complaint given the AL was not in power at the time. There was no mention of these demands for money in his entry interview by either AL or BNP cadres. I am not satisfied the applicant is a credible witness. I do not accept that the applicant was threatened by either AL or BNP cadres to pay political donations.

    (e)the applicant’s claim that he or his brothers were attacked by robbers. The IAA observed that the applicant had provided no further evidence to support this claim in his protection visa interview (PV interview) (at [29]). Even if the IAA had accepted that they had been robbed in the past, it considered that no serious harm had come to them (at [30]).

    (f)the applicant’s claim to have been beaten by Tamils connected to the Awami League in Malaysia. The IAA noted that the applicant had made no mention of this claim in his arrival interview (despite giving other contextually relevant evidence) and that the claim had evolved over time (at [32]).

    (g)that, considering the above, the applicant faced a real chance of relevant harm from either the Awami League or the Bangladesh Nationalist Party (BNP) (at [35] and [44]).

    (h)that, based upon available country information, the applicant faced a real chance of relevant harm as a failed asylum seeker who had spent time in Australia, or on account of his Hindu religion (at [36]-[40] and [45]). In relation to the latter issue, the IAA accepted that there had been attacks against Hindus in recent years and that although the government and the police had taken action, on some occasions they had failed to provide protection. However, after considering the applicant’s circumstances and profile, the IAA concluded that the chance of the applicant being caught up in an attack against the Hindu community, or otherwise suffering relevant harm, was remote.

    proceedings before this court

11. The applicant commenced these proceedings by an application for judicial review filed on 3 July 2017, which contained the following under the heading “Grounds of application”:

    1.In making decision, the IAA acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

    2.        The IAA failed to assess harm based on my claims.

    3.        The IAA failed to assess the present situation in Bangladesh since I left.

    4.        The IAA decision effected by the natural justice.

    5.The IAA made decision without any verification of my genuine documentary evidences and statement.

    6.        The IAA decision is identical or similar of the Departmental decision.

    Particulars:

    IAA unreasonably raised doubt over my claims for my religious believe Hindu minority in Bangladesh. The Department and the IAA misunderstood or misconstrued the facts which was effect the decision.

    And for the safety of my life I forced to leave Bangladesh by boat. When it became worse, I decided to leave Bangladesh.

    I argue that the Department and the IAA asked many irrelevant questions to test the credibility of my evidence.

    The Department and the IAA found inconsistency because the questions were asked in such a manner for which I was not prepared after arrived by boat in Australia. Sometimes I was nervous and confused at the time of interview with the Department & the IAA. I did not understand interpreter properly.

    For the protection of my life and I became serious target by the Muslim Fundamentalist and their activists.

    The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I will provide more details in my Amended Application.

    I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.

    Pleaded grounds

12. The pleaded grounds raised a number of issues in relation to the IAA’s decision.  However, the grounds did not explain:

    (a)how the IAA was said to have acted without or in excess of its jurisdiction;

    (b)what claims, relevant considerations or evidence about the situation in Bangladesh the IAA was contended to have failed to assess or misconstrued;

    (c)how the IAA was said to have denied the applicant natural justice; what verification the IAA was expected to have undertaken, nor why it was required to do so; nor

    (d)what irrelevant questions the IAA was said to have asked.

13. The IAA’s decision was not identical to nor substantially the same as the decision of the Delegate. The reasoning in the respective decisions was differently expressed. It is apparent that the IAA undertook its own assessment of the evidence. This included assessment of whether new information provided after the Delegate’s decision was capable of meeting s 473DD (at [4]-[7]). It also included the IAA’s own assessment of exchanges at the PV interview (e.g. at [30]) and of the evidence given during the arrival interview, after independently listening to that recording (e.g. at [18]). Whilst there was some commonalty in the conclusions that were reached and the issues that were identified, I do not accept that this went beyond that which would be naturally expected to be the product of different decision makers assessing the same claims and evidence.

14. I do not accept that the doubts raised by the IAA regarding the applicant’s claims to face harm as a Hindu were unreasonable in the sense of being devoid of an intelligible justification, logically disconnected from the evidence, nor otherwise closed to the IAA. As summarised above, the IAA relied upon country information indicating that although there had been some attacks against Hindus in Bangladesh, the prospect of someone with the applicant’s profile and background (that was accepted by the IAA) coming to relevant harm on account of their Hindu religion was remote. This reasoning was intelligible. The applicant has not explained why he says that it was closed to the IAA (beyond disagreement).

15. The IAA was also not obliged to find that the issues that it had identified with the applicant’s evidence were capable of being explained by nerves, confusion or difficulties understanding interpreters. The IAA accepted that the applicant appeared confused at times during his protection interview (at [19]). However, it was open to the IAA to attribute the applicant’s confusion not to an inability to meaningfully participate in the interview, but to a lack of credibility, contrivance and to an inability to recall his previous evidence (as it did at [28]).  To the extent that the pleaded grounds refer to issues with an interview before the IAA, it should be noted that no such interview appears to have occurred.

16. The balance of the matters raised under the grounds appeared to reassert the applicant’s factual claims to protection. At the hearing, the applicant similarly sought to elaborate upon the written grounds by restating and expanding upon his claims for protection. However, as I explained at the hearing, this Court does not have the power simply to revisit the factual merits of the IAA’s decision, nor to reassess whether or not he is able to meet the criteria for the grant of the visa. The role of this Court is limited to determining whether there is any legally recognised error in the procedure undertaken by the IAA, or within its decision.

    New information

17. To that end, and noting that the applicant was unrepresented, Ms Case for the Minister considered in some detail whether the IAA’s approach complied with s 473DD of the Migration Act 1958 (Cth) (Act), which provides as follows:

    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 new information 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.

18. The related provision in s 473DC(1) defines “new information” as documents or information that:

    (a)were not before the Minister when the Minister made the decision under section 65; and

    (b)the IAA considers may relevant.

19. In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 (AUS17), new information was considered to be relevant if (at [3] per Kiefel CJ, Gageler, Keane and Gordon JJ):

    …the Authority thinks that the information might be capable of rationally affecting its assessment of the probability of the existence of some fact about which it might be required to make a finding in its decision on the review.

20. The decision in AUS17 is also authority for the principle that the IAA must assess new information against the criteria specified in both s 473DD(b)(i) and (ii) before taking that assessment into account in assessing the criterion in s 473DD(a): AUS17 at [10]-[12].

21. Noting that the applicant was unrepresented, Ms Case identified some potential issues with the IAA’s consideration of the new information that was before it. Whilst her written submissions considered compliance with s 473DD more broadly, at hearing Ms Case confirmed that there were essentially 3 issues she had identified that might be argued to demonstrate error.

22. However, Ms Case submitted that any errors in the IAA’s approach were not material in the sense considered in cases such as MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441. This was because they could not realistically be said to have made any difference to the outcome of the IAA’s review.

23. For the reasons that follow, I accept that submission.

    Issue 1 – new information provided regarding the Agent

24. The first issue identified by Ms Case concerned the IAA’s refusal (at [5]) to accept new information regarding the “further explanation” the applicant had provided regarding the Agent. This new information appears to have been that the Agent was a family friend. In assessing exceptional circumstances, the IAA did not expressly apply the criterion in s 473DD(b)(ii).

25. The IAA did engage to some extent with the credibility of the information, finding that it contradicted (which I have taken to mean, differed from) the account that the applicant had provided at interview.

1. However, even if I accepted that the IAA did not adequately comply with the approach required by AUS17, I accept Ms Case’s submission that such an error could not have been material within the context of the IAA’s decision. At [21], the IAA considered that the applicant’s issues with the Agent concerned a private dispute. Information that the Agent was a family friend was realistically only capable of confirming (rather than altering) that finding. The IAA also found that there was no real chance of the dispute causing the applicant harm in the future, considering that the dispute occurred a number of years before he left Bangladesh and nothing had happened to him before he left. Again, it is not apparent how the Agent’s background as a family friend was realistically capable of altering that finding.

   Issue 2 – the BD News Article

2. Another potential issue raised by Ms Case concerned country information contained in the BD News Article. Again, the IAA did not expressly consider whether this was “credible personal information”. However, the article was on the face of it general country information and not personal information. I therefore accept Ms Case’s submission that there was no realistic possibility of a different result, had the IAA considered this information against s 473DD(b)(ii).

   Issue 3 – fear of contradiction

3. A further potential issue raised by Ms Case concerned the IAA’s lack of express consideration of the applicant’s attempt at CB 113 to explain issues with his evidence during his interviews with the Department.

4. The applicant had submitted to the IAA that his arrival interview should be understood within the context of his journey to Australia, in circumstances where he claimed to have run for his life, travelled through rough sea and “had to fight with dead” during his journey. The IAA did not specifically refer to this, including when it considered the new information that was before it. However, I infer that this was because it did not regard it as new information, as opposed to the making of arguments and/or the reassertion of claims (at [5]). I consider that this interpretation was open to the IAA, in circumstances where the applicant had previously given evidence regarding his alleged escape from Bangladesh, following which he had claimed to have not been in a position to provide all information in his arrival interview “[a]fter crossing the deadly sea” (CB 66). Whilst the IAA accepted that the arrival interview was not the opportunity for the applicant to provide his claims in full, it considered that the applicant had been given the opportunity to provide information regarding his experiences (at [18]). I am not satisfied the IAA overlooked the context of the arrival interview in so finding.

5. At CB 113, the applicant additionally submitted:

   I was afraid to add more details about my involvement with Bangladesh Nationalist Party in my second interview with the Department of Immigration and Border Protection because I thought may be the case officer asked why did not I mentioned this information during the first interview or may be case would say that the provide information are inconsistent.

6. Ms Case submitted that this explanation may have been new information, regarding the applicant’s state of mind at the PV interview. I accept that this may have been the case. However, I also accept Ms Case’s further submission that the IAA’s treatment of this material did not, realistically, deprive the applicant of the possibility of a successful outcome.

7. The IAA did raise concerns regarding the applicant’s approach at the PV interview, based upon its own assessment of his evidence. At [28], it stated its concern that the “applicant was elusive in relation to all requests for specific dates throughout his PV interview” and that at times he “appeared to be contriving his evidence as he went along having forgotten his statement of claims”. The IAA observed that the applicant had been warned in his arrival interview that if he gave different evidence at future interviews then this could raise doubts about the reliability of his evidence (at [18]). The IAA also observed that the Delegate had put to the applicant concerns, during the subsequent PV interview, that he had not raised certain matters in his arrival interview (at [30]) and that he had previously given inconsistent evidence (at [26]). The IAA was therefore aware, in any event, that the applicant was conscious of the potential for this to held against him. The IAA appears to have considered that this may have affected the “elusive” nature of his evidence. The applicant’s suggestion that he had provided limited detail on this account could only have confirmed this. However, there is no indication that this was relied upon by the IAA.

   CONCLUSION

8. For the above reasons, I conclude that the application must be dismissed. I will hear the parties in relation to costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated: 13 October 2022