DBA16 v Minister for Immigration
[2017] FCCA 320
•23 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBA16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 320 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – whether the process followed by the Authority was procedurally unfair considered – where the Authority followed its code of procedure – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5, 5H, 5J, 65, 348, 357A, 359A, 414, 422B, 424A, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473FA, 473GA, 473GB, 473JA, 473JB, 473JC, 473JD, 473JE, 473JF |
| Cases cited: AFK16 v Minister for Immigration [2016] FCCA 1826 BBS16 v Minister for Immigration & Anor [2017] FCCA 4 |
| Applicant: | DBA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 504 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2017 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 18 October 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 504 of 2016
| DBA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 September 2016. The Authority affirmed a decision of a delegate of the Minister not to grant the applicant a form of protection visa known as a Safe Haven Enterprise Visa (SHEV). Background facts relating to this matter are set out in the Minister’s submissions filed on 16 February 2017.
The applicant is a national of Bangladesh. He arrived in Australia as an unauthorised maritime arrival on 14 April 2013[1].
[1] Court Book (CB) 156 [2], 200 [1]
On 14 July 2013, the applicant participated in an Irregular Maritime Arrival and Induction Interview with an officer in the Minister’s Department (Department)[2].
[2] CB 1-19
On 6 November 2015, the Department invited the applicant to make an application for, relevantly, a SHEV[3].
[3] CB 22-32
On 20 April 2016, the applicant applied for a SHEV[4]. In support of his application, the applicant made a statutory declaration in which he claimed to fear persecution at the hands of members of the Awami League political party by reason of his membership of the Bangladesh Nationalist Party (BNP) and his having sought asylum in Australia unsuccessfully[5].
[4] CB 49-115
[5] CB 93-99
On 19 May 2016, the applicant’s former representative sent to the Department a submission in support of the applicant’s claims[6].
[6] CB 127-146
The applicant appeared at an interview before the Minister’s delegate on 26 April 2016[7].
[7] CB 157 [7]
On 20 July 2016, the delegate made a decision to refuse to grant a SHEV to the applicant[8].
[8] CB 155-174
Merits review
On 3 August 2016, pursuant to s.473CA of the Migration Act 1958 (Cth) (Migration Act), the Minister referred the delegate’s decision to the Authority for review under Part 7AA of the Migration Act. The applicant was notified of the referral on the same day and was advised that he could provide new information to the Authority but that it could only consider such information in limited circumstances[9].
[9] CB 176-189
On 14 August 2016, the applicant provided a submission to the Authority[10]. Later that day, the applicant gave to the Authority a copy of a letter that he sent to the Minister on 15 May 2014 in relation to the “data breach” incident that occurred in February 2014[11].
[10] CB 190-191
[11] CB 192-193
On 15 September 2016, the Authority affirmed the delegate’s decision[12].
[12] CB 199-214
The Authority acknowledged that the applicant’s claims had been “presented consistently since he was first interviewed on arrival in Australia”[13] but formed a negative view of his credibility due to the following inconsistencies, discrepancies and implausibilities in his evidence:
a)the Authority had difficulty accepting that the applicant’s impact on the positions of the BNP and the Awami League was so significant after being involved for no longer than two months that local party members would have set out to kill him or to have him imprisoned on a false murder charge[14];
b)the applicant’s actions in remaining at his usual place of residence and workplace after November 2012 (when he was allegedly threatened with harm by the Awami League) until February 2013, after which time he left Bangladesh, “is inconsistent … with his claim that he left the village, and Bangladesh, in fear of his life”[15];
c)the applicant’s explanation that the Awami League was not interested in him once the false murder charge had been brought against him was not consistent with some of his other evidence[16];
d)the applicant’s claim about the false charge was not credible[17];
e)the charge sheet was not genuine and the applicant was not telling the truth about the charges he claimed he faced[18];
f)the applicant’s claim that the Awami League had threatened his family that they would find him and kill him was illogical[19];
g)the notion that it was too difficult for the Awami League to locate the applicant while he stayed with a relative five kilometres from his home, but that they would be able to locate him in Dhaka (the population of which comprises many millions of people) was “not at all credible”[20];
h)the Authority did not accept the applicant’s claims about the harm that he faced from Awami League members as a result of his involvement in the BNP[21].
[13] CB 202 [9]
[14] CB 202 [11]
[15] CB 203 [12]
[16] CB 203 [13]-[14]
[17] CB 203 [15]
[18] CB 203-204 [16]-[18]
[19] CB 204 [20]
[20] CB 204 [21]
[21] CB 204-205 [23]
Having made a series of factual findings, the Authority went on to assess the applicant’s circumstances against the refugee criteria in ss.5H and 5J of the Migration Act.
The Authority was not satisfied that the applicant was subjected to harm, or any threat of harm, from the Awami League prior to his departure from Bangladesh[22]. Nor was the Authority satisfied that the applicant faced a real risk of serious harm at the hands of the Awami League on the basis of his political opinion and activities[23].
[22] CB 206 [27]
[23] CB 206 [27]
The Authority acknowledged that there may be “some small possibility that the applicant would face some kind of harm – such as harassment – if he were to maintain a low level of involvement with the BNP” upon returning to Bangladesh, but it was not satisfied that the applicant faced a real chance of serious harm amounting to persecution[24].
[24] CB 206 [28]
The Authority also was not satisfied that the applicant faced a well-founded fear of persecution on the basis of the “data breach” incident or his being a failed asylum seeker[25].
[25] CB 206-207 [31]-[34]
The Authority found that the applicant had departed Bangladesh unlawfully[26], but found that the likelihood that the applicant would be prosecuted for having done so was “small”[27]. In any event, the Authority found that any penalties to which the applicant may be subjected would be applied in a non-discriminatory manner as a law of general application, and, therefore, not amount to persecution[28].
[26] CB 207 [35]
[27] CB 207 [36]
[28] CB 207 [36]
For similar reasons, the Authority rejected the applicant’s claims for complementary protection[29].
[29] CB 208 [40]-[42]
The present proceedings
These proceedings began with a show cause application filed on 19 October 2016. There are three grounds in that application:
1. The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.
2. The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant’s credibility was an important factor in the Second Respondent’s decision that he was not a refugee, and an oral interview can give an insight into a person’s credibility that is otherwise unavailable. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
3. I am seeking pro bono legal advice with my application and will provide further particulars in due course.
The applicant continues to rely upon that application. The application is supported by a short affidavit filed with it which I received as evidence.
I also have before me as evidence the court book filed on 12 December 2016.
Only the Minister prepared written submissions in accordance with procedural orders made by Registrar Eaton in Perth on 7 December 2016.
I invited oral submissions from the applicant at the hearing of this matter today. He said that he had very little to say. He considers that the Authority was working together with the Department in order to reject his visa application. He considers that neither the Authority nor the Minister’s delegate took proper account of his circumstances. The applicant is concerned in particular that he was not believed. He seeks a further examination of his protection claims.
It is plain from the applicant’s submissions that he is concerned about the merits of the review conducted by the Authority. Those merits are beyond the scope of this proceeding. There is no indication of any bias on the part of the Authority. The conclusions reached by the Authority were open to it on the material before it. The grounds advanced by the applicant, particularly in the general form in which they appear, cannot succeed in the face of the statutory procedural code binding the Authority. I have referred to that procedural code in other recent decisions[30]. The statutory framework under which the Authority operates is accurately set out in the Minister’s submissions.
[30] CDR16 v Minister for Immigration & Anor [2016] FCCA 2759; BBS16 v Minister for Immigration & Anor [2017] FCCA 4
The Fast Track Assessment Process (FTAP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of the FTAP is to provide an efficient and cost-effective means of processing the protection visa applications of those who arrived in Australia as unauthorised maritime arrivals (UMAs) on or after 13 August 2012 and before 1 January 2014.
A person who is subject to the FTAP is a “fast track applicant”—a concept defined in s.5(1). It is not in dispute that the applicant was one such applicant.
A person is a “fast track review applicant” if he or she is a “fast track applicant who is not an excluded fast track review applicant”[31]. It is not in dispute that the applicant was a fast track review applicant.
[31] Section 5(1)
Subject to certain exceptions which are not relevant for present purposes, a “fast track decision” is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Once again, there is no dispute that the delegate’s decision was a fast track decision.
Part 7AA of the Migration Act establishes a scheme of review with respect to certain decisions to refuse to grant protection visas to fast track applicants.
Division 8 of Part 7AA[32] establishes the Authority, the body conducting reviews of fast track reviewable decisions.
[32] sections 473JA-473JF
Division 2 of Part 7AA[33] sets out the procedure for referring reviewable decisions to the Authority.
[33] sections 473CA-473CC
Under s.473CA, the Minister must refer a “fast track reviewable decision” to the Authority as soon as reasonably practicable after the decision is made. A fast track reviewable decision is defined in s.473BB as, relevantly, a fast track decision in relation to a fast track reviewable applicant.
Once the Minister has referred a fast track reviewable decision to the Authority, s.473CB requires the Secretary of the Department to give to the Authority certain material in respect of each decision at the same time as, or as soon as reasonably practicable after, such referral, namely:
a)a statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and gives the reasons for the decision;
b)material provided by the “referred applicant” (defined in s.473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under s.473CA) to the decision-maker before the decision was made;
c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; and
d)the applicant’s contact details.
Subsection 473CC(1) requires the Authority to review a fast track reviewable decision referred to it. Subsection 473CC(2) provides that the Authority may either affirm the decision or remit it to the Minister for reconsideration in accordance with such directions or recommendations as are permitted by the Migration Regulations 1994 (Cth).
Division 3 of Part 7AA[34] deals with the manner in which reviews are to be conducted by the Authority.
[34] ss 473DA-473DF
Subsection 473DA(1) provides that Division 3 of Part 7AA, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the Immigration Assessment Authority”. It is important to note that this provision is couched in broader terms than ss.357A(1) and 422B(1) and operates to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the Authority[35].
[35] AFK16 v Minister for Immigration [2016] FCCA 1826 at [12] per Judge Cameron
While it is clear that the Authority is obliged, by s.473CC, to “review” the delegate’s decision under s.65, the powers conferred on the Authority to conduct this review are more limited than those powers conferred on the Administrative Appeals Tribunal (Tribunal) by ss.348 and 414. Subsection 473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the Authority under s.473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.
Subsection 473DC(1) permits the Authority, subject to Part 7AA, to “get any documents or information” (called “new information”) that “were not before the Minister when the Minister made the decision under section 65” and “the Authority considers may be relevant”. Subsection (2) confirms the discretionary nature of the power in subsection (1) by providing that the Authority “does not have a duty to get, request or accept any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”.
However, new information can only be considered by the Authority if the requirements of s.473DD are satisfied. Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the Authority must not consider any new information unless:
a)the Authority is satisfied that there are exceptional circumstances to justify considering that 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 him or her, the new information:
i)was not, and could not have been, provided to the Minister before the Minister made the decision under s.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.
Subsection 473DE(1) imposes certain disclosure obligations on the Authority not dissimilar to those imposed on the Tribunal by ss.359A and 424A.
Division 5 of Part 7AA contains provisions relating to the exercise of powers and functions by, relevantly, the Authority. It suffices only to note s.473FA(1), which provides that the Authority, in carrying out its functions under the Migration Act, is to pursue the objective of “providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).” This reinforces the legislature’s aim of establishing a form of review that is limited in scope and efficient. Subsection 473FA(2) provides that, in reviewing a decision, the Authority is not bound by technicalities, legal forms or rules of evidence.
Viewed against the background of that statutory scheme, the applicant’s grounds must fail for the reasons advanced by the Minister. I agree with those submissions.
Ground 1
This ground is, essentially, a complaint of procedural unfairness. The difficulty with this ground, however, is that it overlooks the Authority’s limited procedural fairness obligations under Part 7AA of the Migration Act, which have been referred to above. The Authority was required to review the delegate’s decision without accepting or requesting new information and without interviewing the applicant[36]. The fact that the Authority is under no obligation to request or accept new information from an applicant, whether orally or in writing, and even if requested to do so, is confirmed by s.473DC(2). Neither of those provisions, indeed no provision in Part 7AA, is conditioned by the common law rules of procedural fairness[37].
[36] section 473DB(1)
[37] section 473DA(1)
Accordingly, there was no denial of procedural fairness as alleged by the applicant.
Ground 2
In this ground, the applicant contends that, because the applicant’s credibility played a large part in the Authority’s decision to affirm the delegate’s decision, it was required to extend an invitation to the applicant to an oral interview, and its failure to do so amounted to a denial of procedural fairness.
This ground is but another way of making the point advanced in Ground 1. While the Authority has a discretion, under ss.473DC(1) and/or (3), to invite an applicant to an interview to give new information, subsection (2) makes clear that it is under no duty to do so. If the Authority were compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be the Authority generally coming under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s.473DC(2), but it would also defeat the purpose of the FTAP.
The third ground of review advanced, as is noted in the Minister’s submissions, is not a proper ground of review.
I conclude that the applicant is unable to establish that the decision of the authority is affected by any jurisdictional error.
I will order that the application filed on 18 October 2016 be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. In my view, costs in a reduced amount are appropriate having regard to the relative lack of complexity of this matter. The applicant noted that he had been held in detention for the past four years and indicated that he would seek to have the debt written off or waived. That is a matter for him.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 27 February 2017
8
3
4