Eef19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 454

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 454

File number(s):

SYG 2756 of 2019

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

11 March 2021

Catchwords:

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Protection) visa (“SHEV”)  – whether the Authority fell into jurisdictional error by failing to obtain new information – no jurisdictional error is made out – the application is dismissed

Legislation:

Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 473CB, 473DB, 473DC, 473DD.

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174.

AUS17 v Minister for Immigration Border Protection [2020] HCA 37.

Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51.

Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45.

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16.

Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425.

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668.

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760.

Number of paragraphs:

37

Date of last submission/s:

3 March 2021

Date of hearing:

3 March 2021

Place:

Parramatta

Solicitor for the Applicant

The Applicant appeared in person.

Solicitor for the Respondents:

Mr Pinder of Minter Ellison

ORDERS

SYG 2756 of 2019

BETWEEN:

EEF19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	11 MARCH 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the first respondent’s costs fixed in the amount of $6,000.00

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Bangladesh. The applicant arrived in Australia as an unauthorised maritime arrival on 14 March 2013. On 20 May 2016, the applicant lodged an application for a Safe Haven Enterprise (Protection) visa (“SHEV”).

2. On 5 September 2019, a delegate of the Minister for Immigration (“the Delegate”) refused to grant the applicant his visa. The applicant was referred to the Immigration Assessment Authority, (“the Authority”) for merits review. In a decision dated 2 October 2019, the Authority affirmed the decision not to grant the applicant a protection visa.

3. The applicant now seeks judicial review of the Authority’s decision.

   THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

4. Given the grounds of judicial review that appear below, it is not necessary to summarise the Authority’s decision in full.

5. The applicant claimed to fear harm as a result of a relationship he had with a girl from the same village, whose family were powerful political figures. The applicant claims that his girlfriend’s brothers threatened to kill him.

6. The applicant claims that his girlfriend committed suicide and, as a result, her brothers went looking for him. As they were unable to find him, they found the applicant’s sister and killed her in revenge. The applicant claims that if he returns to Bangladesh, he will be murdered by the family of his deceased girlfriend. The applicant also claims to fear persecution from supporters of the Awami League (“AL”) due to his family’s support for another political party, the Jamat-e-Islami (“JI”).

7. At paragraph 6 of the Authority’s decision, new information was provided and attached to a submission to the Authority, including two newspaper articles together with links to others, a letter from an advocate in Bangladesh as well as Bangladeshi Court documents. The Authority noted that the newspaper articles all predated the Delegate’s decision. The Court documents together, with a letter from the applicant’s lawyer in Bangladesh, indicate that a criminal case was lodged against him on 5 June 2006. The Authority considered all of this information but was not satisfied that the latter information was credible. The Authority found that there were not exceptional circumstances to consider any of this new information.

8. Overall, the Authority was not satisfied that the claims by the applicant were credible. The Authority noted that there were inconsistencies in the applicant’s claims over time. At paragraph 35 of its decision, the Authority found it was unable to accept that the applicant was in a relationship with his girlfriend, that he had been threatened by his girlfriend’s brothers, that his girlfriend committed suicide and when her brothers were unable to find him, her brothers killed the applicant’s sister in revenge. The Authority did not accept that the brothers were still looking for the applicant.

9. The Authority considered the applicant’s claims in relation to fears of persecution upon his return to Bangladesh from members of the AL government, and his return as a failed asylum seeker. The Authority’s decision referred to relevant country information collected from the Department of Foreign Affairs and Trade (“DFAT”). The Authority was not satisfied that the applicant met the requirements for refugee protection under s 36(2)(a) of the Act, or the complimentary protection requirements under s 36(2)(aa) of the Act.

   GROUNDS OF JUDICIAL REVIEW

10. The grounds of judicial review are contained in an Initiating Application filed with the Court on 24 October 2019. They are as follows, verbatim:

    Ground One

    Procedural Fairness – Breach of s 473CB of the Migration Act 1958 (Cth).

    The Second Respondent failed to inform or invite the applicant with regards to any claim or any misunderstanding of the claims forwarded in the primary application for the protection visa. The Applicant claims he did not get any chance to explain his claims further.

    Ground Two

    Jurisdictional Error – Failure to Take into Account a Relevant consideration

    The Second Respondent erred as to jurisdiction by failing to take into account the Applicant’s claims as required by the Migration Act. The IAA adopted hard attitude in assessing or examining the relevant facts resented by the applicant. The Tribunal failed to assess the relevant material on logically probative and relevant materials.

    THE APPLICANT’S SUBMISSIONS

11. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter in the Bengali language.

12. Prior to the commencement of the Hearing, the Court ensured that the applicant was in possession of the relevant Court Books and that the first respondent’s written submissions, which he had been provided with, had been interpreted to him. The applicant was also provided with a pen and paper so he could take notes during the Court Hearing, should he wish to.

13. At the commencement of the Hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the process by which the Court Hearing would be undertaken.

14. Despite Court Orders, no written submissions were filed by the applicant in support of the grounds of judicial review outlined above.

15. The applicant told the Court that he could not go back to Bangladesh as he would be killed. The applicant submitted that there will be “no evidence as my body will be dropped in a river”. When asked what legal error was contained within the Authority’s decision, the applicant said that they “did not understand his situation”.

16. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he would like to say anything further in reply. The applicant stated that he had nothing further to add, other than that he would be killed if he returned to Bangladesh.

    THE FIRST RESPONDENT’S SUBMISSIONS

17. The first respondent submits that the Authority had regard to the material supplied to it by the Secretary pursuant to s 473CB of the Act. The first respondent submits that the Authority also had regard to a submission provided to it by the applicant’s representative, in that it was considered to be an argument as to why the Delegate’s decision was wrong. The decision of the Authority to reject the new information, which consisted of hyperlinks to a number of newspaper articles that predated the Delegate’s decision, was unremarkable, as the Authority was justified in finding there were not exceptional circumstances to allow this new information to be considered.

18. The Authority also had proper regard to new information by way of ‘charge documents’ and, again, rejected them on the basis that no explanation was provided as to why, given the documents predated the Delegate’s decision , they had not been provided earlier. The decision of the Authority not to find exceptional circumstances in this situation was, again, unremarkable.

19. As a result of a number of credibility concerns, the Authority rejected the applicant’s material protection claims. Further, following a detailed review of country information, the Authority was not satisfied that the applicant faced a real chance of any harm on the basis of his, or his family’s support for JI.

20. The first ground of judicial review alleges that the Authority should have invited the applicant to explain his claims further and resolve any “misunderstanding”. As the Authority’s findings were consistent with those of the Delegate, it was submitted that there was nothing which gave rise to a requirement for the Authority to consider whether or not to exercise the discretion to obtain further information, or comment, from the applicant: see: (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [71].

21. In relation to ground two, the first respondent submits that this ground borders on something so vague and un-particularised as to be meaningless and incapable of establishing jurisdictional error: (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). The first respondent further submits that the applicant’s contention that the Authority adopted a “hard attitude” is intended to be an allegation of actual or apprehended bias, the first respondent submits that an allegation of actual bias is serious, and must be “distinctly made and clearly proved”: (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]).

22. An allegation of apprehended bias requires a Court to be satisfied that a fair-minded layperson might think that the decision-maker did not bring a fair and impartial mind to the making of the decision: (see Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45 at [37]). Further, it would be a rare case in which apprehended bias can be made out on the basis of the reasons alone; (see Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51 at [18]). It was submitted by the first respondent that the applicant had not made out to the heavy onus of establishing actual bias, nor has he has articulated the proper basis for the Court to make the necessary inferences to support a finding of an apprehension of bias.

23. To the extent that the applicant contends the Authority failed to assess relevant material on a logically probative and relevant basis, the first respondent submits that this should also fail. If the applicant intended to allege the Authority’s decision was illogical, the first respondent submits that there is nothing in the Authority’s reasoning that could be said to be illogical or irrational in the way described in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135].

24. As a matter of caution, the first respondent also submits that the Authority properly applied s 473DD of the Act in respect of the various sources of new information before it. Notably, the Authority first made adverse findings against the criteria specified in both s 473DD(b)(i) and (ii) of the Act before turning its mind to whether or not there were exceptional circumstances. The first respondent submits that no error is apparent in the Authority’s reasoning in terms of the error found by the High Court in AUS17 v Minister for Immigration Border Protection [2020] HCA 37 at [11] (“AUS17”).

    CONSIDERATION

25. Reviews conducted by the Authority under part 7AA of the Act are severely constrained by the operation of a number of provisions of the Act. The Authority is directed, by s 473DB of the Act, to review matters on the papers supplied to it by the Secretary pursuant to s 473CB of the Act, without accepting or receiving new information, and without interviewing the applicant.

26. The Authority may obtain new information pursuant to s 473DC of the Act, but is not under a duty to do so. The Authority may only accept new information if the requirements of

    
    

    s 473DD(1) and (2) of the Act are complied with, which includes that there are exceptional circumstances to justify the Authority considering the new information.

27. It is against this backdrop that the grounds for judicial review advanced by the applicant must be considered.

28. Ground 1 alleges a breach of procedural fairness in that the applicant did not get to explain his claims further. This ground misconceives the statutory scheme under which reviews pursuant to Part 7AA division 2 of the Act are carried out by the Authority. The Court agrees with the submission of the first respondent that there was nothing in this matter that gave rise to a necessity of the Authority seeking new documentary information, or needing to invite the applicant for an interview as part of its’ review process.

29. Ground 2 is, in the Court’s view, very vague. As a result, it is difficult to ascertain precisely what is being agitated. There is nothing in the decision to indicate that the Authority did not consider each of the applicant’s claims. These were set out in detail, discussed and rejected for the reasons given. There is nothing illogical, irrational or legally unreasonable in the factual findings of the Authority.

30. The Authority’s adverse credit findings in respect of the applicant were open to it for the same reasons: (see: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]).

31. The allegation that the Authority adopted a “hard attitude” is not a substantive ground for jurisdictional error. If it is an allegation of bias, then evidence is required to show that the decision maker did not approach their task other than with a mind open to persuasion; see: (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). No such evidence has been provided, nor has any evidence been provided which might indicate a fair minded lay observer would conclude that the decision maker may not have bought an impartial mind to determining the application for review; (see Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at [27-32]).

32. No particulars have been provided as to what material was not assessed on a logically probative basis and on the relevant materials. Given the lack of particulars, this aspect of ground two cannot succeed: (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).

33. As a matter of fairness, the Court has examined the process by which the Authority considered the new material that was provided to it for the purposes of ascertaining if there is error as identified by the High Court in AUS17. At paragraph 4 of its decision, the Authority set out the new information it had received. The Authority considered that a submission received was legal argument, rather than information, and consideration was given to it. The submission also quoted and include links to country information which was not contained within the review material. At paragraph 9 of its decision, the Authority noted that the new information in the submission which was provided by way of hyperlinks did not comply with the requirements of the Authority’s Practice Direction for Applicants of 17 December 2018.

34. The newspaper articles all pre-dated the Delegate’s decision, and the two Wikipedia articles were undated. At paragraph 10 of its decision, the Authority noted that the information, whilst it referred to identifiable individuals, there was no explanation from the applicant as to how it was referrable to him, or, that it was personal credible information which was not previously available, which may have affected his claims. The Court is satisfied that, in relation to this material, each of the relevant provisions of s 473DD(b)(i) and (ii) of the Act were considered prior to the Authority determining that there are no exceptional circumstances to justify considering this new information.

35. At paragraph 11 of its decision, the Authority deals with 21 pages of Court documents. The Authority noted the applicant had not provided any explanation as to when he first became aware that the charges referred to in the documents had been laid against him, how and when he obtained these documents, or why he is only now providing this information. The Authority was not satisfied that this new information could not have been provided to the Minister before the Delegate’s decision was made. The Authority was also not satisfied that the documents were, given the overall credibility concerns in relation to the applicant, credible new personal information which was not previously known. Again, the Court is satisfied that the provisions of s 473DD(b)(i) and (ii) of the Act were considered prior to a determination been made as to whether or not there are exceptional circumstances. There was no jurisdictional error in the way the Authority dealt with this new information.

36. As the applicant was unrepresented, the Court reviewed the carefully perused the Authority’s decision, but was unable to detect any jurisdictional error that was unarticulated by the applicant.

    CONCLUSION

37. As none of the grounds of jurisdictional review agitated by the applicant reveal any jurisdictional error on the part of the Authority, the application is dismissed.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       11 March 2021