DBB16 v Minister for Immigration
[2017] FCCA 375
•1 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBB16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 375 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – whether the Authority constructively failed to exercise its jurisdiction or denied the applicant procedural fairness considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 473CA, 473DB, 473DC |
| Applicant: | DBB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 505 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 March 2017 |
| Delivered at: | Sydney, via videolink to Perth |
| Delivered on: | 1 March 2017 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 19 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 |
PEG505 of 2016
| DBB16 |
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 16 September 2016. Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are uncontroversial and are set out in the Minister’s submissions.
The applicant is a national of Bangladesh. He entered Australia as an “unauthorised maritime arrival” (as defined in s.5AA of the Migration Act 1958 (Cth) (Migration Act)) on 13 November 2012[1].
[1] Court Book (CB) 158
On 14 November 2012, the applicant participated in an Irregular Maritime Arrival Entry Interview[2].
[2] CB 1-13
On 28 August 2015, the Minister’s Department (Department) wrote to the applicant to invite him to apply for, relevantly, a Safe Haven Enterprise Visa (SHEV)[3].
[3] CB 22-27
On 15 January 2016, the applicant made an application for a SHEV[4]. Included in the application was an undated statement in which the applicant set out his claims for protection[5]. The applicant provided a further statement to the Department on 23 April 2016[6].
[4] CB 50-93
[5] CB 90-93
[6] CB 117-123
In short, the applicant feared persecution for reasons of his having been in a relationship with a Christian woman (Ms T) (the applicant being a follower of Islam), his sexual behaviour, his having been adopted, his having witnessed the murder of a member of the Bangladesh Nationalist Party (BNP) at the hands of the Awami League (AL) and his perceived opposition to both parties, his actual lack of affiliation with any political parties, and his having departed Bangladesh unlawfully and would return to that country as a failed asylum seeker. The applicant feared persecution from sources comprising Ms T’s brother, leaders and members of his local community, the BNP, the AL and the Bangladeshi authorities.
On 28 April 2016, the Department sent a letter to the applicant in which it sought his comments on matters that it considered would be the reason, or a part of the reason, for refusing to grant to him a SHEV. Specifically, the Department requested that the applicant comment on whether he was excluded from being a refugee in the light of his being convicted of kidnapping in Bangladesh[7].
[7] CB 139-142
The applicant responded to this invitation, and made some further submissions in support of his application on 31 May 2016[8].
[8] CB 143-152
On 12 July 2016, a delegate of the Minister made a decision to refuse to grant a SHEV to the applicant[9].
[9] CB 157-184
Merits review
On 14 July 2016, pursuant to s.473CA of the Migration Act, the Minister referred the delegate’s decision to the Authority. The applicant was notified of the referral in a letter of the same date[10]. The applicant was advised that the Authority would proceed to make a decision on the basis of the information provided to it by the Department, unless it decided to consider new information, which it could only do in limited circumstances[11]. Enclosed with the letter from the Authority was a factsheet and Practice Direction, the latter having been issued by the President of the Administrative Appeals Tribunal, which relevantly set out the circumstances in which new information could be considered[12].
[10] CB 193-194
[11] CB 193
[12] CB 195-205
On 13 September 2016, the Authority contacted the Department and requested copies of certain documents that had been provided to it in a format that could not be read[13]. Those documents were received by the Authority on 14 September 2016[14].
[13] CB 206-207
[14] CB 208
On 16 September 2016, the Authority affirmed the delegate’s decision[15].
[15] CB 215-230
From [5]-[11] of its decision[16], the Authority set out the evidence and submissions that the applicant gave to the Department during the visa application process and identified a number of inconsistencies which, in turn, the Authority found, reflected poorly on his credibility.
[16] CB 218-221
For example, the Authority considered it implausible that the applicant would not have raised the claim concerning his having witnessed the murder of the BNP member in his SHEV application, given that this event occurred at the same time as his relationship with Ms T (which was canvassed in the application)[17].
[17] CB 218 [6]
The Authority found that the evidence that the applicant provided during the interview with the Minister’s delegate as to the timing of the murder, his having been adopted and his actions upon being released from prison, when compared with the evidence that he gave in his SHEV application (which were considered at [7][18]), revealed inconsistencies that were “so significant, and unlikely to be mis‑recollected, as to raise doubts about whether they can [b]e accounted for … as errors of memory”[19].
[18] CB 218-219
[19] CB 219 [8]
The Authority also identified inconsistencies (in the applicant’s entry interview, SHEV application, and interview before the delegate) with respect to his reasons for departing Bangladesh and his relationship with members of his family[20]. Indeed, the Authority noted, at [10][21], a concession made by the applicant in his submission to the Department dated 31 May 2016 that he had not provided correct information during the entry interview “because he did not know how his real story would be perceived by the Australian authorities.” The Authority did not find this explanation convincing.
[20] CB 220 [9]-[10]
[21] CB 220
The Authority further found that the applicant was forthcoming about his circumstances during the entry interview, “but that thereafter [he] has not provided credible evidence about his reasons for leaving Bangladesh, his relationship with his family, or his circumstances more generally”[22]. The Authority found that the applicant was never adopted and mistreated for having been adopted, was never in a relationship with Ms T and attacked as a consequence, had never faced harm by reason of his being perceived to be a Christian convert, and he had never witnessed the murder of the BNP member[23]. The Authority did accept, however, that the applicant had never been a member or supporter of any political party or organisation in Bangladesh[24].
[22] CB 220 [11]
[23] CB 220 [11]
[24] CB 221 [11]
From [12]-[23][25], the Authority assessed the applicant’s circumstances against the criteria for refugee status in ss.5H and 5J of the Migration Act. It found that there was not a real chance that the applicant, if he were to return to Bangladesh, would be subjected to serious harm on account of his having been adopted, his relationship with Ms T, his perceived conversion to Christianity, his sexual behaviour or his having witnessed the murder of the BNP member, since those claims had been found not to be credible[26]. The Authority also found, by reference to independent country information, that there was not a real chance that the applicant would be subjected to serious harm by reason of his lack of political affiliations, unlawful departure from Bangladesh or his status as a failed asylum seeker, notwithstanding the “data breach” incident that occurred in 2014[27].
[25] CB 221-225
[26] CB 221-222 [14]-[16]
[27] CB 222-224 [17]-[21]
The Authority then considered the applicant’s claims for complementary protection at [24]-[27][28], and found that there was not a real risk that the applicant would face any harm if he were returned to Bangladesh.
[28] CB 225
The present proceedings
These proceedings began with a show cause application filed on 19 October 2016. The grounds in the application are:
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 application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 12 December 2016.
In accordance with procedural orders made by a Registrar, both the applicant and the Minister prepared pre-hearing written submissions.
The applicant denied receipt of the Minister’s submissions, and with that in mind, I had the Minister’s counsel first present those submissions orally. The applicant agreed to that course. I then invited the applicant to respond.
The applicant stated simply that if he was not believed, there was nothing he could do. He also stated that he is afraid to return to Bangladesh and wishes to remain in Australia.
It is apparent from the Minister’s submissions and the available material in the court book, that the grounds advanced by the applicant have no substance. In Ground 1, the applicant contends that the Authority constructively failed to exercise its jurisdiction and denied him procedural fairness by failing to raise critical matters with him. The applicant provides no particulars of what critical matters were not raised. By this ground the applicant also asserts that adverse material was not raised with him for comment. Again, no particulars are provided.
As is pointed out in the Minister’s submissions, the applicant in this ground fails to grapple with the procedural code binding the Authority under Part 7AA of the Migration Act. Apart from that problem, it is apparent from the reasons of the delegate that the essential and significant issues on which the review would turn had previously been framed by the delegate. It follows that even if the applicant had been able to establish as a matter of principle that some disclosure could have been called for, it was not called for on the facts of this case. Neither was the decision of the Authority based upon any adverse information requiring disclosure by the Authority under its code of procedure.
In Ground 2, the applicant asserts that the Authority denied him procedural fairness by refusing an oral interview. Again, the applicant in this ground fails to grapple with the Authority’s procedural code. In that regard I agree with the Minister’s submissions.
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)(b), to invite an applicant to an interview to give new information, subsection (2) makes clear that it is under no duty to do so. Further, s.473DB(1) requires the Authority generally to conduct a hearing without an interview. 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 many cases. That would not only be inconsistent with the text of s.473DC(2), but it would also defeat the purpose of the Fast Track Application Process.
Further, even if that statutory obstacle could have been overcome, the court book discloses that the applicant made no submission to the Authority for the purposes of the review. If nothing is raised by an applicant to the Authority bearing on the question of whether there are exceptional circumstances warranting an oral interview, it is hard to see how the Authority would fall into error in following its procedural code.
As noted by the Minister, the third ground is not a proper ground of review.
In his written submissions, at [9] to [12], the applicant refers to four matters which he asserts were not considered by the Authority. However, as explained in detail by counsel for the Minister, each of those matters was addressed at a factual level by the Authority in its reasons between [3] and [11]. The Authority concluded by rejecting each of the factual matters raised by the applicant in support of his claim for protection. That rejection was made on a reasoned basis, and the Authority’s conclusions were open to it on the material before it.
It follows, and I find, that none of the matters raised by the applicant in his submissions were overlooked by the Authority.
I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error.
I will therefore order that the application filed on 19 October 2016 be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $5800. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. The applicant also expressed concern that his claims for protection were not believed, but that does not bear on the issue of costs.
I will order that the applicant 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 thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 3 March 2017
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