CYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 320
•7 February 2020
FEDERAL COURT OF AUSTRALIA
CYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 320
Appeal from: CYN18 v Minister for Home Affairs and Anor [2019] FCCA 232 File number: QUD 93 of 2019 Judge: LOGAN J Date of judgment: 7 February 2020 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority – where the appellant applied for a Safe Haven Enterprise Visa – where the appellant’s visa application was refused – where the grounds of appeal raised issues which was not raised by the grounds of review in the court below – whether leave should be granted to the appellant to raise new issues on appeal – whether conclusions reached by an administrator about the credibility of a claim are incapable of challenge on judicial review – whether the Immigration Assessment Authority was under a statutory obligation to conduct an investigation Legislation: Migration Act 1958 (Cth) ss 36, 424A, 424AA, 473DB, 473DC, 473DD, Pt 7AA Cases cited: Coulton v Holcombe (1986) 162 CLR 1
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 7 February 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Minter Ellison Solicitor for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
QUD 93 of 2019 BETWEEN: CYN18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
7 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appellant be refused leave to raise each of the grounds of appeal.
2.The appeal be dismissed accordingly.
3.The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
4.The appellant pay the first respondent’s costs, of and incidental to the appeal, to be fixed by the Registrar if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The appellant has been found, administratively, to be a national of Bangladesh. He came to Australia on 24 March 2013 by sea. He did not, at that time, have a visa. That means that he is what the Migration Act 1958 (Cth) (the Act) terms an “unauthorised maritime arrival”. On 8 February 2016, the appellant was invited on behalf of the Minister to lodge an application under the Act for either a temporary protection visa or a Safe Haven Enterprise Visa (SHEV). He did this later in 2016.
On 25 July 2017, a delegate of the Minister notified the appellant that his application for a SHEV had been refused. The effect of the Act in those circumstances was that the appellant’s visa claim and the refusal decision was referred to the Immigration Assessment Authority (Authority) for review. On 16 May 2018, for reasons given in writing and after having considered a submission made by the appellant, the Authority decided to affirm the decision of the Minister’s delegate to refuse the visa application. In deciding to affirm the refusal decision and in relation to the appellant’s nationality or absence of nationality, the Authority stated at AB193, [25]:
… Most significant of all in this regard is the fact that the birth certificates for the applicant’s children list the applicant [in other words, the present appellant] as being a national of Bangladesh. Given this, I do not accept that the applicant has ever lived in Burma and I find that the applicant was born in and is a national of Bangladesh and only of Bangladesh, and that this is also true of the applicants parents and all of his siblings. I therefore find that Bangladesh is the applicant receiving country for the purpose of this review.
The Authority considered on review the various aspects of the appellant’s visa claim, either as originally made or as developed later in the submission made to the Authority. Those various aspects might be summarised as claims by the appellant that he was:
(1)a member of the Barua Buddhist community;
(2)a person who would be perceived to be from Burma, or at least a person who was not a Bangladeshi citizen and one who is stateless and an illegal immigrant in Bangladesh;
(3)a person who had left the country Bangladesh and then returned;
(4)a person who had sought asylum in Australia; and/or
(5)a person who was a failed asylum seeker.
The Authority assessed whether it was satisfied that the appellant had a well-founded fear of persecution for the purposes of s 36(2)(a) of the Act. The Authority also addressed whether, in any event, it should be satisfied that the appellant was a person to whom complementary protection should be given having regard to s 36(2)(aa) of the Act. The Authority’s reasons disclose a most thorough, even meticulous, consideration of the various aspects of the appellant’s claim.
On 7 June 2018, the appellant applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Authority’s decision to affirm the refusal by the Minister’s delegate of his visa claim. The grounds of that application came to be amended in October 2018. As amended, the grounds raised, firstly, an unparticularised allegation of legal error on the part not just of the Authority, but also the delegate, as well as six particularised bases upon which it was said that the Authority’s decision, having regard to its reasons, was irrational or illogical. Unsurprisingly, the first ground, given its generality, was dismissed by the learned primary judge.
His Honour also found that there was nothing illogical or irrational, that the Authority had reasoned through its absence of satisfaction that the appellant did not meet the SHEV criteria or, for that matter, the complementary protection criteria. Accordingly, for reasons which his Honour delivered orally on 30 January 2019, the Federal Circuit Court dismissed with costs the judicial review application. It is from that order of dismissal that the appellant now appeals to this court.
The grounds of appeal are these:
1.The judge of the Federal Circuit Court in his honourable judgement delivered on the January 30 2019 failed error of law and relief under the judiciary Act. He failed to find that the Immigration Assessment Authority IAA has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt.
2.Honourable Judge Vasta failed to hold that the IAA made an error of law when it did not take up and separately deal with the factual issues. The IAA failed to find that Buddhist Minority and Stateless Rohingya is harassed more under present Government. The IAA failed to understand the persecution of Buddhist Religion Belief and Stateless Rohingya. The IAA member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible.
3.I was denied procedural fairness when the IAA member made opinion based on assumption and possibilities without any proper investigation. The IAA failed to assess the current situation in Bangladesh where thousands of Buddhist Religious Minority and Stateless Rohingya are arrested and killed by the Government Authority. In assessing danger to me, the IAA undermined the danger I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protection for my life.
4.Besides, the Immigration Assessment Authority did not follow the proper procedure as required by the Act in arriving its decision in deciding my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.
A noteworthy feature of the grounds of appeal, which was highlighted in the Minister’s submissions, was that each raises an issue which was not raised by the grounds of review in the Federal Circuit Court. That means that it is necessary for the appellant to have leave from this Court in order to raise issues which were not raised before the Federal Circuit Court: see Coulton v Holcombe (1986) 162 CLR 1 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588.
The jurisdiction exercised by this Court is appellate, not original. In the ordinary course it is, therefore, a perversion of the court’s appellate jurisdiction to invite the court to consider issues which ought properly to have been raised in the original jurisdiction. Exceptionally, the court may grant leave to raise on appeal new issues if those issues clearly have merit, involve no prejudice to a respondent and the interests of justice so dictate, having regard to any explanation for the failure to raise the issue earlier. The appellant, and it is no criticism of him, is in the not uncommon, but no less very difficult, position of having had to grapple, as a person without legal training and whose first language is not English, with concepts of administrative law such as jurisdictional error, which are difficult. The Minister, quite properly in the circumstances, did not assert any prejudice in relation to the grounds of appeal.
The real difficulty for the appellant in relation to securing any grant of leave is the absence of any particular merit sufficient to warrant a grant of leave in any of the grounds. I make that observation for these reasons.
Having regard to the Authority’s reasons, this was not a case where the Authority was left in doubt about the correctness or otherwise of a particular fact supporting a claim such that it ought to have given the appellant the benefit of that doubt. Ground 1 therefore does not warrant a ground of leave.
Ground 2, insofar as it alleges a failure to “take up and separately deal with the factual issues” has no prospect of success in that it is patent from the Authority’s reasons that each detail of the claim, either as made or developed in the submission to the Authority, was considered by the Authority on its merits. Ground 2 is otherwise just a solicitation, impermissibly, to conduct merits review. The Authority reached particular conclusions, for reasons logically expressed, for its absence of satisfaction. There, the matter must rest in the absence of jurisdictional error. Ground 2, therefore, does not warrant a grant of leave.
Ground 3 seems to me to challenge the factual analysis and related rejection of particular claims and to do so because of an allegation that the Authority should have conducted an investigation itself. Conclusions reached by an administrator about the credibility of a claim are not incapable of challenge on judicial review (see: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496) but the Authority does need, necessarily, a competing body of evidence in order to conclude that there are inconsistencies in an account or claim of a visa applicant such that the Authority should not be satisfied about that claim. It is apparent from the Authority’s reasons that the various accounts given in the documents which the appellant submitted and country information were analysed by the Authority and in the end, for reasons logically expressed, there was an absence of satisfaction as to the claim which he made in all of its respects.
The starting point in relation to a review by the Authority is that subject to particular provisions in Pt 7AA of the Act, it conducts its review on the material before the delegate without accepting or requesting new information and without interviewing the visa applicant concerned: see s 473DB of the Act.
The metes and bounds of the Authority’s ability to get and to consider new information, including receiving submissions from an applicant or interviewing that applicant are as set out in s 473DC and s 473DD of the Act. The Authority permissibly conducted its review within those metes and bounds. It was not under an obligation created by the Act to conduct an investigation. Ground 3 in the Notice of Appeal therefore has insufficient prospects to warrant a grant of leave.
The fate of ground 4 is already dictated by the observations which I have made in relation to the course followed by the Authority. In short, it followed the procedures set out materially in ss 473DB, 473DC and 473DD of the Act, and therefore this ground also does not warrant a grant of leave.
In the ordinary course the consequence, namely refusal of leave to raise any of the grounds specified in the Notice of Appeal, would be that the appeal must be dismissed. However, the appellant filed two written submissions: one in advance of the hearing today, the other by leave and without objection by the Minister today in court. The interests of justice dictate that issues raised in these submissions also be considered.
The earlier written submission makes reference to the Administrative Appeals Tribunal and to an alleged failure to comply with s 424A or s 424AA of the Act. That submission is in error in the understanding that it was the Administrative Appeals Tribunal rather than the Authority that conducted the review. Yet further, that submission is in error in the understanding that either s 424A or s 424AA had any application at all to the Authority. They apply to a review conducted by the Administrative Appeals Tribunal, nor by the Authority. Yet further, the issues raised in that earlier written submission are at variance both with the grounds of appeal and for that matter the grounds of review pleaded in the Federal Circuit Court.
All of this was highlighted in the submissions made on behalf of the Minister. Those submissions, hardly unfairly and perhaps generously, adopted the position of addressing whether in substance the appellant’s desired basis of challenge was one of a failure to conduct investigation, but as I have already observed, the Authority was under no statutory obligation so to do.
The submissions filed by leave today commences with the statement:
I was persecuted in Myanmar because I am Rohingya minority in Myanmar.
That statement is at variance with, and joins issue in a factually controversial way with the finding made by the Authority in the passage which I have quoted from the Authority’s reasons. It was developed further and eloquently in the written submission made today. But a factually argumentative submission has no place either on judicial review in the original jurisdiction, much less in this Court on appeal. As I explained to the appellant at the outset of the hearing of the appeal, Australian migration law divides functions between administrators and judges, with only administrators having a role of making assessments about which facts to be satisfied and whether, accordingly, there is a visa which must or must not be granted. Judges are concerned only with whether this function by administrators has been discharged according to law. So there is no merit in the appellant’s written submission filed by leave today for that reason.
There are two other aspects of the written submission filed today which call for comment. Firstly, contrary to the submission made in the third-last paragraph, this is not a case where the Authority conducted a hearing, so the allegation of feeling sick in the middle of a hearing is misplaced. So, too, is the allegation about a failure to adjourn. The second-last paragraph in the reasons makes reference to document fraud in Bangladesh and Myanmar. The Authority’s reasons were not based on findings as to document fraud, but rather taking documents such as the appellant’s mother’s passport and a birth certificate on their face and drawing conclusions from them in relation to the overall merits of the claim.
The result then is that even having regard to the written submissions, either as earlier made or as filed today, there are no additional issues raised which have sufficient merit to warrant a grant of leave to raise those as grounds of appeal.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 11 March 2020
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