DCG16 v Minister for Immigration & Anor
[2017] FCCA 285
•20 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DCG16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 285 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – show cause application filed out of time – refusal of an extension of time. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 65, 476, 473CA, 473CB, 473DB, 473DC, 473DD, 477 |
| Applicant: | DCG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 501 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2017 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 501 of 2016
| DCG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application seeking judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 25 August 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). The judicial review application was filed on 19 October 2016, which is 11 days outside the period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time in the interests of the administration of justice, pursuant to s.477(2) of the Migration Act.
For the reasons which follow, I have decided that the interests of the administration of justice do not require that an extension of time be granted.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 13 February 2017.
The applicant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 2 January 2013, and was taken into immigration detention.[1]
[1] CB 3, 70 and 162-163.
In February 2014 there was an inadvertent disclosure by the Minister’s Department of personal information of persons, including the applicant, who were in immigration detention on 31 January 2014 (“the data breach”).[2]
[2] The only information that it was possible to access was a person’s name, date of birth, nationality, gender, details about the detention (when and where the person was detained and the reason), and if other family members were in detention: see the fourth paragraph of the Department’s Secretary’s letter to the applicant dated 12 March 2014 at CB 26.
By letter dated 12 March 2014 (“the 12 March 2014 letter”) the Secretary of the Department wrote to the applicant expressing deep regret for the data breach. The 12 March 2014 letter also stated that:
The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.[3][Emphasis added]
[3] CB 26.
By letter to the Minister dated 15 May 2014 the applicant stated that he feared that the risk of harm upon return to his home country had been greatly heightened as a result of the data breach and that he is a refugee sur place.[4] He asked the Department to contact him with details of the “normal process” so that he could raise his concerns.
[4] CB 27-28.
The Minister subsequently exercised the discretion in s.46A of the Migration Act to allow the applicant to lodge an application for a protection visa, and on 5 November 2015 the Department wrote to the applicant and invited him to apply for a Subclass 785 Temporary Protection visa or a Subclass 790 SHEV.[5]
[5] CB 29-40.
On 23 April 2016 the applicant lodged an application for a SHEV.[6] The application included a statement by the applicant regarding his claims.[7]
[6] CB 55-110.
[7] CB 99-104.
On 28 April 2016 the applicant attended an interview with an officer of the Minister’s Department.[8]
[8] CB 50 and 163 [7].
On 17 May 2016 the applicant’s migration agent sent a post hearing submission to the Minister’s Department in relation to the applicant and three other protection visa applicants.[9]
[9] CB 141.
On 13 July 2016 a delegate of the Minister decided not to grant the applicant a SHEV.[10]
[10] CB 162-182.
The matter was then referred to the Authority in accordance with s.473CA of the Migration Act.[11]
[11] CB 183.
On 18 July 2016 the Authority sent to the applicant an acknowledgement of referral enclosing information about the Authority and the Authority’s “Practice Direction for Applicants, Representatives and Authorised Recipients” (“the Practice Direction”).[12]
[12] CB 188-201.
On 25 August 2016 the Authority affirmed the decision not to grant the applicant a SHEV.[13]
[13] CB 207.
The applicant was notified of the Authority’s decision on 25 August 2016, and provided with a copy of the decision and a fact sheet about Authority decisions.[14]
[14] CB 203-222.
On 10 October 2016 the applicant lodged an application for judicial review of the Authority’s decision in this Court. The applicant also seeks an extension of time to make the application under s.477 of the Migration Act.
Authority decision
The Authority noted that it had regard to the material referred by the Secretary under s.473CB of the Migration Act and that no further information was received by the Authority.[15]
[15] CB 208 at [4]-[5].
The Authority expressed doubts as to the applicant’s credibility, based on inconsistencies in the evidence he provided to the Minister’s Department at the various interviews and in written documents, and found that there was no evidence to indicate that the numerous problems with his evidence were explicable on any basis other than that the applicant had not been completely truthful.[16]
[16] CB 210 at [11].
The Authority:
a)did not accept that the applicant experienced harm, threats of harm and extortion from the Awami League because he left them to join the Bangladesh Nationalist Party or for any other reason;[17]
b)did not accept that the applicant faced harm from the family of a neighbouring shopkeeper as he claimed, or that he had previously fled to Dhaka to avoid being harmed by the shopkeeper’s family;[18]
c)did not accept that the applicant was falsely charged with murder in Bangladesh or that he faces outstanding charges upon return;[19]
d)accepted that the applicant and his family lived in poor financial circumstances, and that he is in debt.[20]
[17] CB 212 at [21].
[18] CB 212-213 at [22]-[23].
[19] CB 213-214 at [28], [30].
[20] CB 214 at [31].
Based on these findings of fact, the Authority:
a)did not accept that the applicant would face harm of any kind for reason of his actual or imputed political opinion should he return to Bangladesh;[21]
b)did not accept that the applicant would face harm from individuals in his village because he refused to give testimony in relation to an assault on their relative, and did not accept that the applicant would face criminal charges as a result of a false case against him, and therefore was not satisfied that the applicant had a well-founded fear of persecution arising from these circumstances;[22]
c)was not satisfied that any economic disadvantage faced by the applicant (upon return to Bangladesh) would be serious harm directed at him for any of the reasons set out in s.5J(1) of the Migration Act, rather than the result of general economic conditions in Bangladesh;[23]
d)did not accept that any harm directed at him by creditors would be directed by any of the reasons set out in s.5J(1); [24]
e)did not accept that the applicant was at risk of harm on return to Bangladesh because of the circumstances of his departure, noting that the applicant left Bangladesh on his own genuine passport with a visa to Malaysia;[25]
f)did not accept that the applicant would have a real chance of any kind of harm upon return to Bangladesh as a result of being a failed asylum seeker;[26]
g)was not satisfied that the applicant was at risk of harm in Bangladesh as a result of the data breach;[27]
h)concluded that the applicant did not meet the requirements of the definition of a refugee in s.5H(1) of the Migration Act, and therefore did not meet s.36(2)(a);[28]
i)considered the complementary protection provisions and concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm;[29] and
j)in considering the complementary protection provisions, accepted that the applicant may owe money which he may be unable to repay but found that it would be reasonable for the applicant to relocate to Dhaka to avoid any harm faced from creditors.[30]
[21] CB 15 at [35].
[22] CB 215 at [36].
[23] CB 215 at [37].
[24] CB215 at [37].
[25] CB 216 at [38].
[26] CB 216 at [39].
[27] CB 216 at [40].
[28] CB 216 at [41].
[29] CB 217 at [48].
[30] CB 217 at [47].
The present application
The judicial review application contains three proposed grounds of review:
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 asserts that an extension of time should be granted but provides no explanation for the delay. Neither does the supporting affidavit filed with the application provide any explanation.
I received that affidavit as evidence, along with the court book filed on 8 December 2016.
I explained to the applicant the issues relevant to an extension of time decision, and asked him why he had not provided an explanation for his delay in coming to Court. He explained that he cannot read English and was looking for someone to help him with a judicial review application. He eventually found someone, but for some reason that person was not able to complete and lodge the application within the required period. The applicant confirmed that this was the only reason for the delay.
Strictly speaking, and as is asserted by the Minister in his submissions, the failure of the applicant to explain the delay in coming to Court by evidence would be fatal to his application.
An explanation for any delay is required by rule 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), which effectively provides that an application under s.476 of the Migration Act must be accompanied by an affidavit and that, if an extension of time is sought, the affidavit must contain “evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension” (emphasis added).
Nevertheless, the applicant, having proffered an explanation from the bar table and there being no objection by counsel for the Minister, I have considered it. The applicant’s delay in this matter was relatively short. The explanation for the delay is plausible, but not unusual.
The applicant as a self-represented litigant whose first language is not English, and who has been held in immigration detention, obviously was at a disadvantage. That disadvantage however, is one that is shared with hundreds, possibly thousands of other applicants.
Having regard to the circumstances, if the grounds in the application carried with them any arguable case of jurisdictional error by the Authority, I would have been minded to grant an extension of time. However, the grounds in the application, in my view, do not have any merit in them.
The first ground asserts that the Authority erred in denying the applicant procedural fairness by failing to raise critical matters with him and to provide him with an opportunity to reply to adverse information. It is plain from the court book that the issues in this case were framed by the decision of the Minister’s delegate.
There was nothing new before the Authority in order to require some disclosure to the applicant by the Authority. As is pointed out by the Minister in his submissions, the Authority operates under a specific code of procedure, different from that of the Administrative Appeals Tribunal (Tribunal). Even if, however, the Authority had operated under the same procedural code as the Tribunal, there would have been nothing requiring the Authority to disclose any unknown significant issues in the review or adverse information, because there was none.
In his second ground, the applicant complains of the failure by the Authority to offer him an oral hearing. That assertion cannot succeed in the absence of evidence that there was something exceptional about the review which necessitated an oral interview. The Minister’s submissions detail the statutory framework within which the Authority operates. Having regard to that statutory framework, the Minister’s submissions are undoubtedly correct.
Ground 2 asserts that an interview is required when an applicant’s credibility is an issue. Such allegation is misconceived and, as outlined above, misunderstands the statutory framework within which the Authority is to conduct its reviews.
It is clear from the legislation inserting Part 7AA into the Migration Act that Parliament did not intend that an applicant would generally be entitled to attend an interview before the Authority, even where the Authority rejects the credibility of the applicant’s claim. This intention is derived from the general position set out in s.473DB(1) of the Migration Act that reviews are to be conducted on the papers without interviewing the applicant, and from the following aspects of ss.473DC and 473DD of the Migration Act:
a)although ss.473DC(1) and (3) allow the Authority to obtain new information, including by way of oral interview, s.473DC(2) provides that there is no duty to do so;
b)section 473DD restricts the circumstances in which the Authority is entitled to consider new information to those where the Authority is satisfied that there are exceptional circumstances to justify considering the new information, and where the applicant satisfies the Authority that any new information given by the applicant was not, and could not have been, provided to the Minister before the Minister made the s.65 decision, or where the new information is credible personal information which was not previously known and may have affected the consideration of the claims if it was known.
There is nothing otherwise in Part 7AA of the Migration Act to suggest that an applicant must be invited to an oral interview by the Authority.
I conclude, having regard to the lack of merit in the judicial review application, that an extension of time is not required in the interests of the administration of justice and the application for an extension of time will be refused. I so order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 February 2017
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