DCH16 v Minister for Immigration & Anor
[2017] FCCA 294
•30 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DCH16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 294 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh as a result of a family dispute and for other reasons – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Authority overlooked a claim or centrally relevant material, or made a factual finding that was unreasonable or made a determination based on no evidence considered. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5K, 5H, 5J, 36, 46A, 357A, 359A, 422B, 424A, 430, 473BA ,473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473EA, 473FA, 473FB, 473GA, 473GB, 473JA, 473JB, 473JC, 473JD, 473JE, 473JF, 476 and 477 |
| Cases cited: AFK16 v Minister for Immigration (No 2) [2016] FCCA 1827 Australian Postal Corporation v D’Rozario (2014) 222 FCR 303, (2014) 143 ALD 564; [2014] FCAFC 89 Buchwald v Minister for Immigration (2016) 242 FCR 65, [2016] FCA 101 CQG15 v Minister for Immigration [2016] FCAFC 146 SFGB v Minister for Immigration (2003) 77 ALD 402; [2003] FCAFC 231 SZWCO v Minister for Immigration [2016] FCA 51 |
| Applicant: | DCH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 502 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 February 2017 |
| Delivered at: | Sydney via video link to Perth and Melbourne |
| Delivered on: | 30 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Yarrow |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 16 February 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 502 of 2016
| DCH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 9 September 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa known as a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the Minister filed on 14 February 2017.
The applicant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 30 January 2013, and was taken into immigration detention.[1]
[1] Court Book (CB) 3, 61 and 159-160.
On 20 February 2013 an officer of the Minister’s Department (Department) conducted an entry interview with the applicant. The applicant stated that he left his country of nationality because his family is a poor family. He gave no other reasons for leaving Bangladesh.[2]
[2] CB 9.
On 6 May 2013 the applicant provided further information to the Department, including that he had killed a man who had hurt his father, and that he came to Australia to save his life.[3]
[3] CB 15.
In February 2014 there was an inadvertent disclosure by the Department of personal information of persons, including the applicant, who were in immigration detention on 31 January 2014 (data breach).[4]
[4] 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 Secretary’s letter to the applicant dated 12 March 2014 at CB 17.
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: [5]
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. (emphasis added)
[5] CB 17.
By letter to the Minister dated 18 August 2014 the applicant and other Bangladeshi asylum seekers stated they were “victim[s] of immigration unintentionally data breach” and that their lives were at risk in their country. They also stated that they were “not involved in any criminal activities or bad things in Bangladesh”.[6]
[6] CB 18-19.
The Minister subsequently exercised the discretion in s.46A of the Migration Act 1958 (Migration Act) to allow the applicant to lodge an application for a protection visa, and on 4 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.[7]
[7] CB 20-33.
On 20 April 2016 the applicant lodged an application for a SHEV.[8] The application included a statement by the applicant regarding his claims.[9]
[8] CB 45-131.
[9] CB 88-93.
On 26 April 2016 an officer of the Department wrote to the applicant inviting him to comment on the effect of his advice to the Department on 7 May 2013 that he had killed a man in Bangladesh in light of the provisions of ss.5H(2) and 36(2C) of the Migration Act.[10]
[10] CB 139-142.
The applicant responded to the Department’s 26 April 2016 letter by a statement of the same date, but not submitted to the Department until 18 May 2016.[11]
[11] CB 143-144 and 165[21].
On 26 or 27 April 2016 the applicant attended an interview with an officer of the Department in relation to his SHEV application and protection claims.[12]
[12] CB 145 and 165 [21].
On 7 May 2016 the applicant’s migration agent sent a post interview submission to the Department in relation to the applicant.[13]
[13] CB 145-153.
On 15 July 2016 a delegate of the Minister decided not to grant the applicant a SHEV.[14]
[14] CB 156-183.
Immediately following the delegate’s decision, the Department’s file was referred to the Authority in accordance with s.473CA of the Migration Act.[15]
[15] CB 184-188.
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” (Practice Direction).[16] The applicant received the Authority’s acknowledgement letter on 27 July 2016.[17]
[16] CB 189-202.
[17] CB 214.
On 9 September 2016 the Authority affirmed the decision not to grant the applicant a SHEV.[18]
[18] CB 207.
The applicant was notified of the Authority’s decision on 9 September 2016, and provided with a copy of the decision and a fact sheet about Authority decisions.[19]
[19] CB 210-226.
On 10 October 2016 the applicant lodged an application for judicial review of the Authority’s decision in this Court.
Authority’s decision
In its reasons for 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 obtained or received by the Authority.[20]
[20] CB 215 at [3]-[4].
On the basis of the evidence before it, including the entry interview, the claims submitted to the Department on 6 May 2013, the SHEV application and interview, the statutory declaration provided to the delegate on 26 April 2016, the post- interview submissions to the delegate and country information, the Authority:
a)did not accept the applicant’s claims that he had sought out a named man “M” and the subsequent claimed events, or that he and his family were threatened or harmed by M in 2006 and 2012;[21]
b)did not accept that M had brought a case against the applicant, accusing him of killing someone else;[22]
c)did not accept that the applicant had ever been a supporter or member of Jamat e‑Islami (JI), although it did accept that the applicant had “some exposure” to JI;[23]
d)did not accept the applicant’s account of his involvement in a college function where the leg of a Member of Parliament’s niece was broken, or that her uncle or any other member of the Awami League had an adverse interest in the applicant;[24]
e)was not satisfied that the applicant had a real or perceived anti-Awami League political opinion, and considered that there was no real chance of harm on this basis;[25]
f)did not accept that the applicant would be imprisoned or detained due to his illegal departure from Bangladesh;[26]
g)did not accept that the applicant will face a real chance of harm on the basis of seeking asylum in Australia;[27] and
h)was not satisfied that the applicant would face any harm from the Bangladesh authorities as a result of the data breach.[28]
[21] [14] and [16].
[22] [15].
[23] [18].
[24] [23].
[25] [24].
[26] [26].
[27] [27].
[28] [28].
Consequently, the Authority found that the applicant did not meet the definition of a refugee in s.5H(1) of the Migration Act, and therefore did not meet s.36(2)(a).[29]
[29] [29].
The Authority also considered the complementary protection provisions of the Migration Act and found that there were not 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.[30] Accordingly, the Authority concluded that the applicant did not meet s.36(2)(aa).[31]
[30] [33].
[31] [33].
The present proceedings
These proceedings began with a show cause application filed on 10 October 2016. The applicant now relies upon an amended application filed on 16 February 2017. There are four particularised grounds in that amended application:
1. The Second Respondent constructively failed to exercise its jurisdiction to decide the Applicant’s visa application by failing to address a substantial clearly articulated claim made by the Applicant.
PARTICULARS
A. The Second Respondent was not satisfied that the Applicant or his family were ever harmed (Reasons at [16]).
B. In its reasons, the Second Respondent did not address the threats to the Applicant’s father which were an element of the Applicant’s claims (Reasons at [5] – third dot point – and [9]).
C. The Second Respondent accepted that the Applicant was approached by “Kamal” and asked to join Awami Leaague (Reasons at [19]).
D. In its reasons, the Second Respondent did not address the risk to the Applicant arising from his refusal to pay “Kamal”.
2. The Second Respondent constructively failed to exercise its jurisdiction to decide the Applicant’s visa application by overlooking apparently credible and relevant information made by the Applicant.
PARTICULARS
The Applicant refers to and repeats the particulars given for Ground 1 aobve.
3. The Second Respondent made an inference that no reasonable decision maker, making the primary findings made by the Second Respondent, would make.
PARTICULARS
A. The Second Respondent determined that the Applicant’s claim that he was able to “reside in Bangladesh” after the incident involving “Sheikh Mujibur” was adverse to the Applicant’s credibility.
B. This determination was one that no reasonable decision maker could make.
4. The Second Respondent’s made a determination for which there was no evidence or other material to justify.
PARTICULARS
A. The Second Respondent found that “even if the Bangladeshi authorities did come across the information published through the data breach, it will not be of concern to them”.
B. There was no evidence or other material before the Second Respondent to justify the finding.
I have before me as evidence the court book filed on 15 December 2016.
Both the applicant and the Minister prepared pre-hearing submissions and counsel for both parties also made helpful oral submissions at the trial of this matter on 21 February 2017. I have been assisted by those submissions.
Consideration
Applicant’s contentions
Ground one – failure to address a claim
In Dranichnikov v Minister for Immigration,[32] Gummow and Callinan JJ identified that a failure “to respond to a substantial, clearly articulated argument relying upon established facts” amounts to a constructive failure to exercise jurisdiction.[33] That the same may be true of claims made arises from the observation of Robertson J, in Minister for Immigration v SZRKT,[34] that:
there is no clear distinction in each case between claims and evidence: … The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error. (references omitted)
[32] Dranichnikov v Minister for Immigration (2003) 197 ALR 389, (2003) 77 ALJR 1088, [2003] HCA 26.
[33] Dranichnikov at [24], [25] and [32] per Gummow and Callinan JJ.
[34] Minister for Immigration v SZRKT (2013) 212 FCR 99, [2013] FCA 317 at [111] per Robertson J.
A Full Court of the Federal Court which upheld this observation explained it in these terms:[35]
the tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the tribunal’s functions.
[35] Minister for Immigration v SZSRS (2014) 309 ALR 67, [2014] FCAFC 16 at [54] per Katzmann , Griffiths and Wigney JJ.
The applicant submitted in prehearing submissions that the Authority’s failure to properly consider two central claims made by the applicant amounts to a constructive failure to exercise jurisdiction. The two claims were:
a)that threats were made to the applicant’s father in 2006, which threats were discrete from other claims of the Applicant that were not accepted by the Authority (the Father claim);[36]
b)that there was risk to the applicant arising from his refusal to pay money demanded by “Kamal” (the Kamal claim).[37]
[36] CB 215 [5] third dot point and 217 [9]. The finding at CB 218 [16] that the applicant’s family were never “harmed” by M does not encompass the claim of threats made by M.
[37] CB 218 [17] and [19]. Counsel for the applicant conceded in argument that, in light of the Minister’s submissions on this particular, it would not be pressed.
The applicant relies on the statement of McHugh, Gummow and Hayne JJ, in Minister for Immigration Affairs v Yusuf (Yusuf),[38] that:[39]
It is not necessary to read s.430 [a provision requiring the RRT to record findings on material questions of fact] as implying an obligation to make findings in order for it to have sensible work to do. Understanding s.430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s.430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s.75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s.476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. (references omitted, emphasis added)
[38] Minister for Immigration v Yusuf (2001) 206 CLR 323.
[39] Yusuf at [68] per McHugh, Gummow and Hayne JJ.
The Authority has the same obligation to record its findings when providing reasons as that considered in Yusuf.[40]
[40] See Migration Act 1958 (Cth) s.473EA(1)(b) (obligation for Authority to set out reasons for decision) and Acts Interpretation Act 1901 (Cth) s.25D which provides:
The failure of the Authority to make a finding in respect of the Father claim is said to support the inference that the Authority did not consider it material.
The failure to consider the Father claim is said to have left the unexplored possibilities that the claim was false, the claim was true but that the risk to the applicant had ended with the passage of time or that the risk remained and, therefore, the applicant was a member of a social group consisting of his family and he had well-founded fear of persecution by reason of membership.[41]
[41] Migration Act 1958 (Cth) ss.5J(1) and 5K.
The applicant submits that it was for the Authority to consider the unexplored possibilities. By failing to do so, it fell into jurisdictional error. Ignoring the claims of the applicant in these respects was a serious matter that goes to the exercise of the Authority’s functions.
Ground two – overlooking relevant and credible information
Ground two of the applicant’s grounds of review is equivalent to that in Ground one, except that it concerns “evidence” rather than “claims”. The claims/evidence distinction is difficult to draw in respect of the Father claim and the Kamal claim. The central issue is whether the failure to consider the applicant’s evidence (described above as the Father claim) is whether “ignoring the material may be serious and go to the exercise of the tribunal’s functions”.[42]
[42] Minister for Immigration v SZSRS (2014) 309 ALR 67, [2014] FCAFC 16 at [54] per Katzmann , Griffiths and Wigney JJ.
The applicant submits that the evidence concerned with the Father claim is serious and does go to the exercise of the Authority’s functions.
Ground three – Li unreasonableness
It is uncontroversial that legal unreasonableness is a species of jurisdictional error.[43]
[43] Minister for Immigration v Li (2013) 249 CLR 332.
The applicant contends that the Authority’s reasoning in respect of one of the applicant’s claims concerning a “College incident” is affected by unreasonableness.
The College incident concerns the applicant’s claim, at interview in April 2016, that he was involved in a melee at a college function, defending a person against a group of Awami League members.[44] In May 2013, the applicant provided a differing account of the College incident. When making findings about the College incident, the Authority stated:[45]
I also find it adverse that he was able to reside in Bangladesh subsequent to this claimed incident with no apparent harm [from] Sheik Mujibur or any other Awami League member.
[44] CB 220-221 [20]-[24].
[45] CB 221 [23].
This finding was central to assessing the applicant’s credit in respect of the College incident claim. The applicant submits that no reasonable decision maker, properly informed of the evidence, could make an inference of the kind made by the Authority. The absence of harm cannot reasonably be, without more, adverse to the credit of the applicant. This finding is sufficiently central to the Authority’s treatment of the applicant’s College incident claim that the decision of the Authority “lacks an evident and intelligible justification”.[46]
[46] see Minister for Immigration v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ.
Ground four – no evidence ground
The applicant was one of the persons affected by the data breach described by the High Court in Minister for Immigration v SZSSJ.[47]
[47] Minister for Immigration v SZSSJ [2016] HCA 29, (2016) 333 ALR 653, (2016) 90 ALJR 901. See CB 17.
The applicant claimed that the data breach would likely result in Bangladeshi authorities becoming aware that he had sought asylum in Australia, and he would face detention or imprisonment as a result.[48] The Authority did not accept this claim, although it did accept that:
a)the applicant’s details were released in the data breach;[49]
b)the information published in the data breach would have identified the applicant as someone who arrived in Australia illegally and is in immigration detention.[50]
[48] CB 220 [25].
[49] CB 220 [28].
[50] CB 220-221 [28].
A central element of the Authority’s reasoning was the following:[51]
I find that even if the Bangladeshi authorities did come across the information published through the data breach, it will not be of concern to them.
[51] CB 221 [28].
The applicant contends that this finding was a critical step in the ultimate conclusion of the Authority, namely that the applicant did not satisfy the definition in s.5H of the Migration Act.[52]
[52] CB 221 [29].
In the case of the no evidence ground of review, the authorities are divided on whether jurisdictional error arises:[53]
a)from a finding made without evidence where the finding is a critical step in reaching the ultimate conclusion;[54] or
b)only when the lack of evidence relates to a matter that is a jurisdictional pre-requisite for the exercise of the decision making power concerned.[55]
[53] the division was observed in Australian Postal Corporation v D’Rozario (2014) 222 FCR 303, (2014) 143 ALD 564; [2014] FCAFC 89 at [16] per Besanko J and SZNKV v Minister for Immigration (2010) 118 ALD 232 at [38] per Kenny J. Compare Buchwald v Minister for Immigration (2016) 242 FCR 65, [2016] FCA 101 at [33]-[39] per Bromberg J (preferring the “jurisdictional fact” approach).
[54] see, for example, SFGB v Minister for Immigration (2003) 77 ALD 402; [2003] FCAFC 231 at [19] per Mansfield, Selway and Bennett JJ.
[55] see, for example, VWBF v Minister for Immigration [2006] FCA 851, (2006) 154 FCR 302 at [19] per Heerey J.
The applicant submits the former is the correct state of the law. The applicant concedes he cannot succeed if the latter is correct.
Minister’s contentions
The Particulars to Ground 1 assert that the Authority failed to consider:
a)“the threats to the applicant’s father, which were an element of the applicant’s claims”; and
b)“the risk to the applicant arising from his refusal to pay “Kamal”.”
The Minister’s short answer to Ground 1 is that the Authority did consider both of these claims.
In relation to the claimed threats to the applicant’s father, the Authority referred to the threats to his family from M in 2006 and the escalation in 2012 when his father was beaten at [5], [9], [10] and [11], and then concluded at [16] of its reasons:
Even if I were to accept the applicant’s claims that [M] has previously threatened the applicant and his family and beaten him and his father, I do not accept that [M] has any ongoing interest in the applicant. On the applicant’s own evidence he was able to reside in Bangladesh for approximately 1 year subsequent to this claimed event and did not have any encounters with [M]. I also note the applicant’s family continue to reside at the same place of residence and have not had their land confiscated by [M]. I am not satisfied the applicant or his family were ever harmed by [M]. Based on the applicant’s evidence at interview about the case that was brought against him, I am not satisfied [M] has an active interest in the applicant on this basis. I am not satisfied there is a real chance the applicant will be harmed by [M] upon return to Bangladesh, now or in the reasonably foreseeable future.
(emphasis added)
The Minister submits that the Authority considered the claims that the applicant’s father had been threatened by M and did not accept that the events described occurred. This is a finding that was open to the Authority. Further, as [16] of the Authority’s reasons makes clear, even if the Authority had accepted the applicant’s claims in relation to threats to his father, this would not have changed the outcome of the decision. Accordingly, any failure by the Authority to consider “the threats to the applicant’s father” (which is denied) in concluding that that he was not satisfied that the applicant or his family were ever harmed did not amount to jurisdictional error as it did not affect the Authority’s decision[56].
[56] see Yusuf per McHugh, Gummow and Hayne JJ at [82] and [84]
The Minister also submits that the Authority did consider “the risk to the applicant arising from his refusal to pay “Kamal”.” At [17] the Authority referred to the applicant’s claim that a member of the Awami League Party, Kamal, demanded that the applicant join the Awami League or pay two lakhs, that after three to four days Kamal demanded the money and hit him with a hockey stick, that he was given 15 days to pay the money, and that the applicant fears he will be harmed by Kamal because of his involvement with the JI and refusal to join the Awami League.
At [19] of its reasons, the Authority said:
The applicant claims to have been threatened by Kamal. He claimed he did not know who Kamal was but his friends told him that he was a member of the Awami League and Kamal targeted the applicant because he knew that he was involved with JI. I have not accepted the applicant was involved with JI. I am willing to accept the applicant was approached by someone called Kamal, who requested that he join the Awami League, however, the applicant did not join, nor did he pay the money which was demanded by Kamal and no further contact or threats of harm were received from Kamal. On this basis, I am not satisfied Kamal has an adverse interest in the applicant and I am not satisfied there is a real chance the applicant will face any harm, now or in the reasonably foreseeable future.
(emphasis added)
This passage of the Authority’s reasons is said to demonstrate that the Authority considered the risk of harm to the applicant for failure to pay money to Kamal, but was not satisfied that there was a real chance of harm for that reason.
Ground two – Constructive failure to exercise jurisdiction – overlooking apparently credible and relevant information
Ground two asserts that the Authority overlooked apparently credible and relevant information made by the applicant, and relies on the same particulars as provided for Ground one.
In substance, Ground two is identical to Ground one. The Minister refers to and relies upon his submissions in relation to Ground one, and submits that for the same reasons, Ground two must also fail. The Minister submits that the Authority did take into account the information provided by the applicant, and in reality Ground two is an impermissible attack on the merits of the Authority’s decision.
Further, and in any event, the Minister submits that the Authority is not required to refer in its reasons to every piece of evidence. As the Full Court of the Federal Court said in Applicant WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184 at [46]:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.
Nor is the Authority required to give a line by line refutation of evidence. In Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1, McHugh J said at [65]:
… Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal.
Although the above statement relates to s.430 of the Migration Act, the Minister submits that when providing reasons under s.473EA, the Authority is likewise not required to give a line by line refutation of the evidence.
Ground three – Authority made an inference that no reasonable decision maker would make
The applicant asserts that it was unreasonable for the Authority to conclude that it was adverse to the applicant’s credibility that he was able to “reside in Bangladesh” after the incident involving “Sheikh Mujibur”.
The Authority summarised the applicant’s evidence at his SHEV interview in relation to an incident at a college function where there was a fight with Awami League members in which the nephew of Sheik Mujibur had his leg broken at [21] as follows:
During the SHEV interview, the applicant was asked to provide further detail in respect to this incident, such as the date and time of the event. He stated he could not remember. The applicant did not have any dealings with Sheik Mujibur or the other Awami League members subsequent to this incident and he continued to reside in Bangladesh for a further two months with no apparent harm or revenge taken.
(emphasis added)
At [22] the Tribunal referred to the applicant having previously said in May 2013 that a niece of an Awami League member was in a dispute and the applicant and his friends attacked her and broke her leg, but that during the SHEV interview he claimed that it was interpreted incorrectly or the case manager noted his claims incorrectly, and that it was a boy’s leg that had been broken, and it was not the applicant who broke it but just some other people who were involved in the fight. At [23] the Authority found:
I have considered the applicant’s account of this incident. I have also considered the applicant’s inconsistent account of this event raised in May 2013 and in his SHEV application and subsequent interview. I find the change in the applicant’s account of this event to affect the applicant’s credibility adversely. I also find it adverse that he was able to reside in Bangladesh subsequent to this claimed incident with no apparent harm [from] Sheik Mujibur or any other Awami League member. I am not willing to afford the applicant the benefit of the doubt in respect of the incident at the college function, nor do I accept that Sheik Mujibur or any other member of the Awami League have an adverse interest in the applicant. I am not satisfied there is a real chance the applicant will face any harm now or on the reasonably foreseeable future on this basis.
(emphasis added)
The Minister submits that it was not unreasonable for the Authority to conclude that the applicant’s ability to reside in Bangladesh after an allegedly threatening incident without facing any harm or receiving any further contact from those allegedly threatening him undermines his credibility in relation to this incident. This is said to have been a finding open to the Authority to make, for the reasons it gave. Even if another finding was open to the Authority, that made by the Authority will still stand and no illogicality could be said to arise in circumstances where one decision has been preferred over another decision[57]. The Minister contends that the applicant is seeking to challenge the merits of the Authority’s decision.
[57] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ; at [76]-[78] per Heydon J.
Moreover, the Minister submits that, even if the Court concluded that this particular finding of the Authority was not one that was open to the Authority, that would not result in the Authority’s decision being illogical such that it would be affected by jurisdictional error.
The Minister submits that, when the Authority’s statement is read in context, it is plain that the lack of harm in the period during which the applicant resided in Bangladesh following the claimed incident was only an additional reason for the Authority making adverse credibility findings against the applicant in relation to this claim. It is clear from the Authority’s reasons at [20]-[23] that the Authority made an adverse credibility findings against the applicant as a result of the applicant’s inconsistent accounts of the incident. Even if the Authority had not found the applicant’s subsequent residence in Bangladesh with no apparent harm to be “adverse”, that could not have affected the Authority’s credibility finding about this incident.
The applicant’s criticism of the Authority’s reasoning is said to be one of emphatic disagreement[58], but it does not demonstrate irrationality in the sense required by the authorities[59]. The Authority’s decision is neither legally unreasonable as the applicant alleges, nor is it illogical.
[58] Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 198 ALR 59, [2003] HCA 30 at [5] per Gleeson CJ, quoted with approval by an unanimous Court in Minister for Immigration SZJSS (2010) 243 CLR 164, [2010] HCA 48 at [34].
[59] as to which, see Minister for Immigration v SZMDS (2010) 240 CLR 611, [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ and the summary collected by Wigney J in SZWCO v Minister for Immigration [2016] FCA 51 at [60]-[65] and Minister for Immigration v SZUXN (2016) 69 AAR 210, [2016] FCA 516 at [52]-[56] (referred to with approval by the Full Court in CQG15 v Minister for Immigration [2016] FCAFC 146 at [60]).
Ground four – No evidence or other material to justify the Authority’s data breach finding
By Ground four the applicant asserts that there was no evidence or other material to justify the Authority’s conclusion[60] that “even if the Bangladeshi authorities did come across the information published through the data breach, it will not be of concern to them”, in circumstances where the applicant claimed that he could not return to Bangladesh on the basis of the data breach, as it would result in the Bangladeshi authorities being aware that he sought asylum in Australia[61].
[60] at [28]
[61] Authority’s reasons at [25]
A “no evidence ground” requires an absolute absence of evidence.[62] This is said to be clearly not the case here. When the Authority’s reasons at [27] and [28] are read together, it is said to be clear that there was evidence for the Authority’s conclusion, including DFAT reports. Paragraphs 27 and 28 state:
DFAT reports that Bangladesh accepts both voluntary and involuntary returnees. DFAT understands that recent returnees from the United Kingdom have not been subjected to any adverse attention by the authorities or others. Most returnees, including asylum seekers are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. I am not satisfied the applicant will face a real chance of harm on the basis of seeking asylum in Australia.
I accept that the applicant’s personal details were published online by the Department through the data breach. I accept the information published would have identified the applicant as someone who arrived in Australia illegally and is in immigration detention. However, I note the information published did not contain the applicant’s claims for protection. I find that even if the Bangladeshi authorities did come across the information published through the data breach, it will not be of concern to them. The applicant is not of adverse interest to the Bangladeshi authorities. On this (sic) own evidence, he is certain there are no active cases against him in Bangladesh. I have already found the applicant will not be adversely treated by the authorities on the basis of departing illegally or seeking asylum in Australia and that the Bangladesh authorities accept both voluntary and involuntary returnees. I am not satisfied that there is a real chance the applicant will face any harm from the Bangladeshi authorities on the basis of the data breach.
(emphasis added)
Resolution
[62] MZZUG v Minister for Immigration [2015] FCA 1151 at [55]-[61]
Jurisdiction and statutory framework
The parties agree on the issue of this Court’s jurisdiction and the statutory framework within which decisions of the Authority come to be considered.
A decision made by the Authority pursuant to s.473CC(2) of the Migration Act falls within the definition of “migration decision” in s.5(1) of that Act. Thus the Court has jurisdiction under s.476 of the Migration Act to review decisions of the Authority made under s.473CC(2).[63]
[63] see AFK16 v Minister for Immigration (No 2) [2016] FCCA 1827.
Pursuant to s.477(1) of the Migration Act, an application for a review of an Authority decision must be made within 35 days of the date of the decision. However, the Court has power under s.477(2) to grant an extension of time as is appropriate, and if satisfied that it is necessary to do so in the interests of the administration of justice. The applicant made his application to the Court within the specified 35 day period.
Statutory framework – Fast track review process
The Fast track Review Process (FTRP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014 (Cth). The aim of the FTRP is to provide a limited, efficient and quick form of review of certain decisions refusing protection visas some applicants, including those who arrived in Australia as unauthorised maritime arrivals on or after 13 August 2012 and before 1 January 2014.[64] Such a reviewable decision is known as “fast track reviewable decision”.[65] A protection visa applicant whose visa refusal decision is subject to the FTRP is known as a “fast track review applicant”.[66]
[64] see ss.473BA and 473FB of the Migration Act.
[65] see definition in s. 473BB.
[66] defined in s.5(1).
The applicant is a “fast track applicant” as defined in s.5(1), as he arrived in Australia on 2 January 2013, the Minister exercised his discretion under s.46A(2) to lift the bar in s.46A(1), and the applicant lodged a valid application for a SHEV.
Pursuant to s.5(1) of the Migration Act, 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”.[67] The applicant is a fast track review applicant as he is a fast track applicant who is not an excluded fast track review applicant.
[67] also defined in s.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. Accordingly, the delegate’s decision on 13 July 2016 to refuse to grant a protection visa to the applicant was a fast track decision, and therefore was also a fast track reviewable decision in accordance with paragraph (a) of the definition in s.473BB.
Part 7AA of the Migration Act establishes a scheme of review of fast track reviewable decisions.
Division 8 of Part 7AA (ss.473JA-473JF) establishes the Authority, the body conducting reviews of fast track reviewable decisions.
Division 2 of Part 7AA (ss.473CA-473CC) sets out the procedure for referring fast track reviewable decisions to the Authority. 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.
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 that 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 the decision for reconsideration in accordance with such directions or recommendations as are permitted by regulation.
Division 3 of Part 7AA (ss.473DA-473DF) deals with the manner in which reviews are to be conducted by the Authority.
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 Authority”. This provision is couched in broader terms than ss.357A(1) and 422B(1) and has been found to operate to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the Authority.[68]
[68] AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12] per Judge Cameron.
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” (emphasis added).
However, s.473DC(1) permits the Authority, subject to Part 7AA, to “get any documents or information (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 s.473DC(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 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 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 Administrative Appeals Tribunal by ss.359A and 424A of the Migration Act.
Division 5 of Part 7AA contains provisions relating to the exercise of powers and functions by the Authority. Subsection 473FA(1) 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 IAA “is not bound by technicalities, legal forms or rules of evidence.”
Grounds of review
Ground 4 – no evidence
This ground may be disposed of briefly.
The Authority’s finding at [28] that “even if the Bangladeshi authorities did come across the information published through the data breach, it will not be of concern to them” is supported by evidence that was before the Authority as identified by the Minister at [68] above, and this ground must therefore fail. It is unnecessary to rule on the apparently conflicting authorities referred to at [46] above.
Grounds one and two – overlooking a claim or apparently credible and relevant information
These grounds may be taken together because, apart from the fact that the claim is put on alternative basis that what was overlooked was either a claim or credible and relevant information, the grounds are the same.
In my view, on a fair reading of the Authority’s reasons at [9] – [16][69] the claims or evidence were considered. The relevant material is set out in the applicant’s statement made on 20 April 2016 at [10] – [23][70]. I accept that there is a link to the Father claim and the Kamal claim in the following paragraphs of the Authority’s statement of reasons.
[69] CB 217 - 218
[70] CB 88 - 90
At [16] of its reasons the Authority rejected the proposition that M had threatened either the applicant or his family or beaten the applicant and his father. I accept the Minister’s submissions at [51] above that the Authority did consider the applicant’s claims that his father had been threatened by M and did not accept that the events described occurred. Further, as the Minister submits, even if the Authority had accepted the Father claim it would not have changed the outcome of the decision because, as the Authority found, the threats by M were not followed through and the family were able to reside safely for a further year.
It is unnecessary to consider further the applicant’s submissions in relation to the Kamal claim as, in light of the Minister’s submissions set out above at [52] – [54], the argument in respect of the Kamal claim was not pressed.
Ground three – unreasonableness
The applicant contends that it was unreasonable for the Authority to reach an adverse credibility finding based simply upon the fact that the applicant was able to reside in Bangladesh with no apparent harm subsequent to the claimed incident at the college function. The relevant passage in the Tribunal’s reasons is recited above at [62]. The Minister contends that the adverse credibility finding was open to the Authority but that, even if it was not, any error would not go to jurisdiction because the adverse credibility finding was substantially based upon the applicant’s inconsistent account of the incident.
There is, in my view, a lack of logic in the Authority’s proposition that because the applicant was able to reside in Bangladesh for two months after the incident without apparent harm or revenge being taken the incident was a fabrication. The “safe residence” finding might have supported an alternative proposition that the applicant was not of adverse interest to Sheikh Mujibur or other Awami league members. The latter conclusion was reached by the Authority at [16] of its reasons[71] in relation to the claim concerning M. The Authority there reasoned that the fact that the applicant had been able to reside in Bangladesh safely for approximately a year after the alleged incident with M indicated that M had no ongoing interest in the applicant.
[71] CB 218
It is hard to avoid a conclusion that a process of reasoning which, on the one hand, is said to establish that the applicant was of no ongoing interest to an alleged persecutor and, on the other hand, that the alleged incident was a complete fabrication is at least illogical and, arguably, unreasonable in a legal sense.
It is not, however, necessary to reach a final conclusion on this proposition because I accept the Minister’s submission that the Authority’s adverse credibility finding at [23] is primarily supported on the basis of the inconsistencies in the applicant’s account. Relevantly, the Authority said at [20] – [22]:
During the SHEV interview he stated that he attended a college function one evening with his friends. He claimed that there was a girl being harassed by some Awami League members. She was being sworn at and was threatened with rape. He stated that he and his friends assisted the girl and broke into a fight with the Awami League members. Later in the same interview the applicant said that he himself did not fight, he was only trying to save the girl. He claimed that there were five to six people on each side. A member of the Awami League had his leg broken in the fight and it later became known that his uncle (Sheik Mujibur) was a ‘big leader in the village.’ He stated that after the incident the girl left the function. She had attended the function by herself.
During the SHEV interview, the applicant was asked to provide further detail in respect to this incident, such as date and time of the event. He stated he could not remember. The applicant did not have any dealings with Sheik Mujibur or the other Awami League members subsequent to this incident and he continued to reside in Bangladesh for a further two months with no apparent harm faced or revenge taken.
The applicant previously (in May 2013)claimed that a niece of an Awami League member was in a dispute and the applicant and his friends attacked her and broke her leg. He claimed that her uncle was out to seek revenge. During the SHEV interview when asked about this incident, he claimed that it was interpreted incorrectly or the case manager noted his claims incorrectly. He stated that he said it was a boy’s leg which was broken and it was not the applicant who broke it, but just some people who were also involved in the fight. A copy of the applicant’s 2013 statement recounting the event stated that the claims were read back to the applicant with the use of a Bengali interpreter and the applicant confirmed the claims were correct. I do not accept that the claims the applicant made in 2013 were incorrectly recorded.
At [23][72] the Authority concluded:
I have considered the applicant’s accounts of this incident. I have also considered the applicant’s inconsistent account of this event raised in May 2013 and in his SHEV application and subsequent interview. I find the change in the applicant’s account of this event to affect the applicant’s credibility adversely. I also find it adverse that he was able to reside in Bangladesh subsequent to this claimed incident with no apparent harm [from] Sheik Mujibur or any other Awami League member. I am not willing to afford the applicant the benefit of the doubt in respect to the incident at the college function, nor do I accept that Sheik Mujibur or any other member of the Awami League have an adverse interest in the applicant. I am not satisfied there is a real chance the applicant will face any harm now or on the reasonably foreseeable future on this basis.
[72] CB 220
It is in my view clear that the principal basis for the Authority’s adverse credibility finding was inconsistency in the applicant’s account. The safe residence finding was secondary. Because there is a logical and reasonable basis for the adverse credibility finding that was open to the Authority I reject ground three.
Conclusion
I conclude that the applicant has been unable to establish that the decision of the Authority is affected by any jurisdictional error. I will therefore order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 30 March 2017
25D Content of statements of reasons for decisions
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
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