ELF19 v Minister for Immigration and Multicultural Affairs
[2025] FCA 168
•11 March 2025
FEDERAL COURT OF AUSTRALIA
ELF19 v Minister for Immigration and Multicultural Affairs [2025] FCA 168
Appeal from: ELF19 v Minister for Immigration, Citizenship,
Migrant Services and Multicultural Affairs [2021]FCCA 152
File number: NSD 121 of 2021 Judgment of: RAPER J Date of judgment: 11 March 2025 Catchwords: MIGRATION – appeal from orders of the (former) Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority which had affirmed a decision of the delegate not to grant a protection visa – whether the IAA erred in failing to consider the merits of the case or dismiss certain evidence – whether the IAA erred by failing to give adequate weight to the appellant’s psychological state which may have manifested in purported inconsistencies in his account – whether the IAA erred by taking into account irrelevant and subjective considerations – whether the IAA erred by failing to test the accuracy of the interpretation – whether the IAA failed to undertake an impartial assessment – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 27
Migration Act 1958 (Cth) ss 5AA, 5H(1), 36(2)(a), 36(2)(aa), 473BA, 473CA, 473DB, 473DC(1), 473DD
Federal Court Rules 2011 (Cth) r 36.57
Cases cited: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; 253 FCR 448
BVZ21 v Commonwealth of Australia [2022] FCAFC 122
Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; 289 FCR 164
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 36 Date of hearing: 3 March 2025 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent HWL Ebsworth Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs
ORDERS
NSD 121 of 2021 BETWEEN: ELF19
Appellant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
RAPER J
DATE OF ORDER:
11 MARCH 2025
THE COURT ORDERS THAT:
1.The first respondent be renamed “Minister for Immigration and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RAPER J:
The appellant is a citizen of the People’s Republic of Bangladesh, who arrived in Australia by boat on 25 March 2012, as an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth). An officer of the Department of Immigration and Border Protection (as it was then known) interviewed the appellant on 20 January 2013. On 12 August 2016, the appellant made an application for a Safe Haven Enterprise (Class XE) visa (SHEV). On 29 August 2019, the appellant attended an interview with a delegate to the Minister (SHEV interview). On 12 September 2019, a delegate of the Minister refused to grant the appellant a SHEV. On 17 September 2019, the appellant’s matter was referred to the Immigration Assessment Authority for review pursuant to s 473CA of the Act. On 6 October 2019, the appellant’s migration agent sent a submission to the Authority containing some new information (as defined in s 473DC(1) of the Act). On 10 October 2019, the Authority affirmed the delegate’s view. On 11 November 2019, the appellant filed an application for judicial review of the Authority’s decision before the former Federal Circuit and Family Court of Australia. On 3 February 2021, the FCCA dismissed the appellant’s application: ELF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 152 (PJ or primary judgment).
The appellant appeals to this Court from that the decision on six purported grounds, none of those grounds are directed to any purported error in the primary judgment, but rather, are directed to the second respondent, the Immigration Assessment Authority’s, underlying decision of 10 October 2019. This matter was only docketed to my chambers in February 2025.
In an appeal of this nature, this Court must determine whether the FCCA was correct to find that the Authority’s decision was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [117] per Nettle and Gordon JJ. This Court has no power to grant a visa, nor to disagree with the merits of the decision of the Authority. This Court may only correct error. For the reasons which follow, no jurisdictional error has been established and the appeal must fail.
The Authority’s decision
As has previously been observed by this Court, the form of review undertaken by the Authority is a “limited form of review” (s 473BA of the Act) and is “sui generis”, which is not equivalent to the merits review undertaken by the Administrative Appeals Tribunal: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; 253 FCR 448 at [85] per Charlesworth J.
In the Full Court decision, Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534 Griffiths J outlined (at [19]–[20]) the Authority’s procedure of generally undertaking the review on the papers:
19. The legislative scheme obliges the IAA to conduct its review of a fast track reviewable decision referred to it by considering the review material provided to it under s 473CB, without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)). In other words, the review is generally conducted on the papers and focuses on the review material provided by the Secretary to the IAA.
20. There are provisions in Subdiv C of Div 3 concerning the IAA getting documents or information which were not before the primary decision-maker when he or she made the decision under s 65 and which the IAA considers may be relevant. Such documents or information are described as “new information” (s 473DC). It is made clear that the IAA does not have a duty to get, request or accept, any new information if requested to do so by a referred applicant or anyone else (s 473DC(2)). The IAA may, however, invite a person to give new information to it, either orally or in writing (s 473DC(3)).
(Emphasis added).
On 12 September 2019, a delegate of the Minister had refused to grant the visa. Whilst the delegate had found that the appellant was a low-level supporter of the Jamaat-e-Islami Party (JI) in Bangladesh, she was not satisfied that the appellant held any leadership role in JI or its student wing, the Islamic Chhatra Shibir (ICS).
As required by s 473DB of the Act, the Authority considered the material that had been provided to it by the secretary. The Authority was constrained from considering any new material provided by the appellant, unless the conditions of s 473DD were met. The Authority considered the new material provided by the appellant through this legislative prism. No issue was raised before the Authority or the primary judge about the rejection of the new material.
The Authority articulated what it understood were the appellant’s claims for protection and thereafter made factual findings. The appellant claimed that he had been politically involved from 2006 in Bangladesh and was attacked in 2006 and 2007, following which he was forced to flee the country. By being politically involved, the appellant had claimed to have been a supporter of JI and that he had held a role in the ICS. The Authority was not satisfied the appellant had been a member of the ICS, as he claimed at the SHEV interview: IAA[9]. It was also not satisfied that the appellant’s father was involved in politics or had attempted to run for political office as he claimed: IAA[11]. The Authority did not accept the appellant’s claims, in his SHEV interview, that he opened his own tailoring business, at age 16 or 17 years: IAA[12]. The Authority was not satisfied any damage to tailor’s shop (where he was working) during the 2006 protests, had anything to do with the appellant or members of his family nor that the appellant suffered any harm: IAA[12]. The Authority noted that the Awami League did not come to power until 2008 and the appellant’s claims indicated a significant lack of knowledge of the actual political situation in Bangladesh at the time: IAA[13]. The Authority rejected the appellant’s claim to have been involved in the organisation of protests and rallies for JI in 2007, and did not accept that the appellant was a witness of truth: IAA[15]. The Authority found that there was no evidence before it to indicate that the appellant had undertaken any political activities before he departed Bangladesh shortly after his 19th birthday nor that had engaged in any ongoing political activities in Australia: IAA[16].
As a consequence the Authority concluded that the appellant did not meet the definition of refugee under s 5H(1) and therefore s 36(2)(a) of the Act nor as a candidate for complementary protection under s 36(2)(aa) of the Act: IAA[24] and [25]–[28].
For the reasons which follow, I can discern no error in the primary judge’s decision, it is evident from a review of the Authority’s decision, the material before the Authority, the submissions before the primary judge and her Honour’s reasons, together with the submissions on appeal that her Honour attended her task according to law.
Leave to rely on fresh evidence
To assist his argument the appellant sought leave pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) to rely on fresh evidence on the appeal. During the hearing, I refused leave with respect to the majority of the evidence, but reserved my position, with respect to a news article in the Bhairab News, claimed to be from 23 October 2024. In that article it referred, according to the appellant, to the death of his father and to the purported fact of his father having been, according to his family, between 2008 and 2024, to have been the subject of multiple arrests and legal charges, “which his family describes as baseless and politically driven”. The Minister opposed that application.
The Court has power to admit fresh evidence on appeal: see s 27 of the Federal Court Act. The power to admit further evidence is remedial and its primary purpose is to ensure that proceedings do not miscarry. Rule 36.57 of the Federal Court Rules 2011 (Cth) sets out the requirements for an application that the Court receive fresh evidence on appeal. As observed by a Full Court of this Court in BVZ21 v Commonwealth of Australia [2022] FCAFC 122 per Markovic, Thomas and Halley J (at [12]):
In exercising the discretion, the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different, and further that the party seeking to adduce the evidence was, at trial, unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [15]–[16] (Griffiths, Mortimer and White JJ).
I refuse leave, upon reflection, for the following reasons. There was no evidence before me as to the provenance of the document. The evidence was not before the primary judge and the Authority. The question of whether the Authority’s decision was made within power as conferred by the Act, is answered by reference to the circumstances as they existed at the time the Authority exercised that power: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; 289 FCR 164 at [28] and [29]. Whilst it is accepted given when it was created, it could not have been provided, the critical matter is that, even if it was, it is not clear how it would very probably have made a difference to the outcome. It refers to allegations made by members, presumably of the appellant’s family, as to the reason for their father’s treatment. It provides no detail as to the basis for those claims and how they would align with the appellant’s previous claims regarding his father or himself. There is no apparent basis as to how it could be used to identify error in the primary judge’s reasons or those of the Authority.
Ground one
By the first ground the appellant asserts that the Authority “failed to consider the merits of my case in completed which resulted in crucial factors regarding my case being not assessed against the relevant legal criteria”.
The primary judge considered this ground of review at PJ[29]–[33]. Absent particulars, her Honour observed the complaint to be a “global complaint against the merits of the decision”: PJ[28].
The primary judge attempted to understand the appellant’s complaint by reference to the appellant’s written submission and oral submissions. The appellant, in his written submissions below, referred to one incident that occurred in 2006 where Awami League members killed JI members in the presence of Bengali police: PJ[30]. The primary judge noted the appellant’s concession that the Authority had heard what he had to say, but his complaint was that he was not believed: PJ[31]. It was a matter for the Authority to determine whether it was satisfied that the appellant’s claims made out a fear of persecution. The primary judge observed that the Authority considered the appellant’s claims “as advanced and developed over time”: PJ[32]. By this her Honour was alluding to the fact that the appellant’s claims, as observed by the Authority, changed over time, on each occasion that he was interviewed. This is the case: The Authority analysed the change in the appellant’s claims over time: see IAA[8]–[14]. By way of example, her Honour referred to the fact that the particular incident concerning the killing of JI members in 2006 was not a claim he made to the Authority or to the Department: PJ[33].
On appeal, when asked about what the Authority had failed to consider, the appellant submitted that the Authority had failed to consider certain attenuating circumstances at the time of his SHEV interview and this led to the purported inconsistencies. There is an overlap between this contention and those made with respect to grounds two and five. I refer to my reasons with respect to each of those grounds below as to why I do not accept this submission.
For these reasons, I can discern no error in the primary judge’s reasoning in rejecting the first ground.
Ground Two
By the second ground, the appellant contends that the Authority failed to give adequate weight to the appellant’s psychological state at the time of the SHEV interview and failed to acknowledge that what may have appeared as inconsistencies were in fact a result of his fears and psychological issues related to expressing himself before an authority.
The delegate, as part of her reasons dated 12 September 2019, considered the appellant’s claim that he had attempted to obtain psychological treatment a year before (and therefore in 2018) and had not returned since. The delegate then referred to a medical certificate dated 30 August 2019: at page six of the delegate’s reasons. The certificate itself was before the Authority. It makes no reference to the appellant having any past difficulty participating in the SHEV interview by reason of any medical condition.
The primary judge noted the appellant’s submission appeared to be that the Authority should have extrapolated from the 2019 medical evidence that the appellant did not have the capacity to recall correctly the answers he gave in 2013: PJ[38]. Her Honour also noted that the appellant had not at any point during the visa or review process claimed that he suffered from any incapacity during the SHEV interview: PJ[39]. Her Honour also held that in any event the Authority’s credit findings had not been based on how the appellant had delivered his claims at the SHEV interview: PJ[40]. I accept this characterisation of the Authority’s reasons.
For these reasons, I can discern on error in the primary judge’s reasoning in rejecting this ground.
Ground Three
By the third ground the appellant contends that the Authority dismissed evidence such as his membership of a political group without a reasonable ground which could be supported by evidence. The primary judge rejected the ground on the basis that the Authority had provided “cogent reasons” for rejecting aspects of the appellant’s claim about his membership of a particular social group, and had had regard to his evidence and to country information: PJ[45]. It is clear from the summary of the Authority’s reasons above, that the Authority, over ten paragraphs of its reasons, considered the appellant’s claims and gave reasons for why he accepted or rejected them. It is a matter for the Authority to determine whether, on the evidence, it is satisfied, that the appellant’s claims have been made out.
When asked on appeal, to elaborate on the bases for this ground, the appellant submitted that it was not possible for him to bring proper documentation as to his political affiliations in 2007 nor to obtain them in 2019 when he attended the SHEV interview. The absence of ability to put on material in support of one’s claims does not constitute an error on the part of the decision-maker.
I can discern no error in her Honour’s rejection of this ground. It is clear from the Authority’s reasons, there were multiple bases upon which the Authority rejected the appellant’s claims of political affiliation. For instance, the Authority noted the changed-nature and expansion of the appellant’s claims over time. The Authority formed the view, with respect to claimed incidents of harm in 2006, that the claims were inconsistent with country information: IAA[13]. The Authority did not accept the appellant’s claim that he had been a member of Islami Chhatra Shibir: IAA[9]. It also did not accept that the appellant’s father had been involved in politics: IAA[11] and [13]. The Authority expressed concerns about the appellant’s knowledge of the political situation in Bangladesh: IAA[13]. As submitted by the Minister, these reasons indicate an engagement with the appellant’s claims and demonstrate a considered rejection of the appellant’s protection claims on multiple bases. I can discern no error in the primary judge’s reasons.
Ground Four
By the fourth ground the appellant contends that that the Authority “took into account irrelevant and subjective considerations and that the decision was unreasonable”. The primary judge rejected the ground (addressing what was “Ground 5” of the judicial review application): PJ [49]–[53]. Her Honour noted the appellant’s written submission that the appellant asserted that the Authority had failed to consider “online media and UN Human Right Documents”, and that the Authority “just gave affirmative motion to the decision” of the delegate, and that the Authority should have given the appellant the opportunity to provide oral evidence at the interview, but such an opportunity was denied. For the above reasons, it is clear that the Authority, did more than simply affirm the delegate’s reasons. The Authority’s reasons did not simply mirror those of the delegate. The Authority made different findings and considered country information, as part of its reasons: IAA[13]. There is no obligation, in any event, on the Authority to conduct its own research or to make its own enquiries, as referred to by the primary judge: PJ[52]. The appellant had had the opportunity to present new information to the Authority, and had taken up that opportunity.
To the extent that the appellant was alleging “unreasonableness”, such an error can only be the subject of judicial review if it constitutes “legal unreasonableness”. Whether a decision is legally unreasonable concerns the enforcement of the law governing the limits of the power in question and not the manner of its exercise. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise will not be legally unreasonable simply because the Court disagrees with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] per Wigney J.
The primary judge observed the standard for legal unreasonableness: PJ[50]. Her Honour found that the Authority considered the appellant’s claims as advanced at different junctures of his application, including the document he submitted and country information: PJ[51].
On appeal, the appellant submitted that given the short time between the making of the delegate’s decision (12 September 2019) and the Authority’s decision (on 10 October 2019), noting that the appellant had provided information, only four days before the decision, suggested that the Authority had made the decision adversely and without foundation. I do not accept this is made out. Whilst, the decision was made in a short period, and on the papers, this is how the Authority’s fast-track reviewable process is meant to occur. The Authority’s reasons are detailed and cogent. Those reasons disclose an understanding of the legislative scheme and give consideration to the matters the appellant raised.
For these reasons, I can discern no error in the primary judge’s reasons for dismissing this ground.
Ground Five
By the fifth ground the appellant contends that the accuracy of the interpretation was not tested. The primary judge, by reference to the appellant’s written submissions (addressing what was “Ground 6” of the judicial review application), understood the ground to refer to the SHEV interview: PJ[56]. The appellant was recorded as having submitted that he was not “mentally fit”. In this respect, her Honour observed that the complaint was not to do with the standard of interpreting at the SHEV interview, concerned the appellant’s mental fitness. I agree, as the primary judge observed that this submission appeared to overlap with the second ground: PJ[57]. In this respect, I repeat and rely on my earlier reasons with respect to that ground.
At the hearing of the appeal, the appellant submitted that this ground concerned the accuracy of the interpreting in the SHEV interview. That the interpreter made mistakes. The appellant submitted, by way of example, that the interpreter had suggested his sister rather than brother was living in Burma. As noted by her Honour, the same issue, as below, arose on appeal, the appellant did not articulate what those errors were (save for a reference to there being a mistake as to where one of his siblings resided) nor how that mistake might have affected the Authority’s findings.
I can discern no error in her Honour’s reasons and dismiss this ground.
Ground Six
By the sixth ground the appellant contends that the decision was “unreasonable to the objective assessor”. The appellant struggled to articulate on appeal who the “assessor” was. The appellant was reminded on appeal, that his submission below (with respect to the then “Ground 7” of the review below), was that the Authority had failed to make an impartial assessment and that the Court should appoint a new member to re-assess his protection application: PJ[61]. The appellant then submitted that, the absence of an “impartial assessment” was apparent from the fact that whenever he submitted anything or provided more information, it was found not to be acceptable, no matter what material he put on.
I can discern no error in the manner in which her Honour dealt with this ground. For the above reasons, I do not accept that the Authority’s assessment was not impartial.
Conclusion
For these reasons, the appeal must fail and the appellant pay the first respondent’s costs as agreed or assessed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper. Associate:
Dated: 11 March 2025
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