Exz18 v Minister for Home Affairs
[2019] FCCA 1307
•16 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EXZ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1307 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5H, 36, 46A, 473CB, 473DB, 473DC, 473DD, 473DE |
| Cases cited: AQN15 v Minister for Immigration & Anor [2016] FCCA 58 BEL18 v Minister for Home Affairs [2018] FCA 2103 |
| Applicant: | EXZ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2687 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms C Juarez of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2687 of 2018
| EXZ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 30 August 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).
Background facts relating to this matter are conveniently summarised in the Minister’s outline of submissions filed on 9 May 2018.
The applicant is a citizen of Bangladesh, who arrived in Australia at Christmas Island on 24 March 2013 and is an unauthorised maritime arrival.[1] On 10 March 2016, the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act), allowing the applicant to make a valid application for a specified visa.[2] The applicant subsequently applied for a SHEV on 11 August 2016.[3]
[1] Court Book (CB) 52, 58
[2] CB 35
[3] CB 42
On 25 May 2018, the applicant attended an interview with an officer of the Minister’s Department (SHEV interview),[4] and on 13 June 2018, the applicant’s representative submitted post-interview submissions.[5] On 6 July 2018, the delegate refused to grant the applicant a SHEV.[6] The delegate’s decision was a “fast track reviewable decision” and was referred by the Minister to the Authority for review on 12 July 2018.[7]
[4] CB 118
[5] CB 134
[6] CB 149
[7] CB 171
On 3 August 2018, the applicant’s representative submitted a written submission to the Authority (Authority submission).[8]
[8] CB 199
On 30 August 2018, the Authority affirmed the decision under review.[9]
[9] CB 202
Applicant’s claims
The applicant’s claims for protection are set out at [11] of the Authority’s decision.[10] The applicant claims to fear harm in Bangladesh from Awami League (AL) members, because he is a member and supporter of Jamaat-e-Islami (JI) and refused to join AL, and from members of the Naxal gang because he witnessed gang members beat an AL member.
[10] CB 201–202
Authority decision
The Authority accepted that the applicant was a married Muslim man from Pabna district in Bangladesh; that his wife, mother, one brother and two sisters continue to live in Bangladesh; that he was from a small village of mostly farmers; and that his father and grandfather were farmers.[11] The Authority was also prepared to accept that his father and another brother currently resided in Malaysia,[12] and that the applicant left Bangladesh by boat without using a passport.[13]
[11] CB 202 at [12]
[12] CB 202 at [13]
[13] CB 211 at [49]
However, the Authority did not accepted any of the applicant’s other claims, including that:
a)he joined Bangladesh Islami Chhatra Shibir (ICS), the student section of JI, in 2008 (or at all) and attended monthly meetings;[14]
[14] CB 202–203 at [14]–[15]
b)he witnessed a physical assault in December 2012 by members of the Naxal gang against an AL member, or any of the incidents that flowed from that claimed event;[15] namely, that:
[15] CB 203–206 at [16]–[27]
i)he intervened and arranged for the beaten man to be sent to hospital where he later died;
ii)the gang members threatened to harm him;
iii)he was pressured by the AL and the police to be a witness in the case;
iv)he made a complaint to the police in January 2013;
v)physical violence was perpetrated against family members by AL; or
vi)his family home was burnt down by AL or family land was confiscated by AL;
c)before travelling to Malaysia in 2014, his father and brother were in hiding and travelled to Malaysia because the family home was burnt down, their land was confiscated in January or the AL demanded money from his father;[16]
d)his younger brother is or was in hiding in Bangladesh;[17] and
e)he or his family supported or were members of JI.[18]
[16] CB 206 at [28]
[17] CB 206 at [29]
[18] CB 206–208 at [30]–[34]
In light of these factual findings, the Authority was not satisfied that the applicant had the profile of a person who would be targeted for any harm by the AL government, its members or supporters; that he would be active in support for the JI if he returned to Bangladesh; that there was a real chance he would be targeted for real or perceived support for ICS or JI; or for any other reason, including because he was a Muslim, because of his departure from Bangladesh or as a returning failed asylum seeker.[19] Accordingly, the Authority found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) and s.36(2)(a) of the Migration Act[20] and, for the same reasons, the Authority found that the applicant did not meet the complementary protection criterion in s.36(2)(aa) of the Migration Act.[21]
[19] CB 210–212 at [45]–[51]
[20] CB 212 at [53]
[21] CB 212–213 at [56]–[58]
The present proceedings
These proceedings began with a show cause application on 21 September 2018. The applicant continues to rely upon that application. There is one unparticularised ground in it:
Ground 1.The Authority's decision was inconsistent, and so unreasonable. Particulars will be provided once the court book is provided.
The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book filed on 11 December 2018.
Prior to today’s hearing, the applicant had in email correspondence requested an adjournment. At my invitation, he renewed that request at the outset of today’s hearing. On 17 April 2019, the applicant provided a number of documents in support of his adjournment request. This included a confidential psychological report from John Machlin, a clinical psychologist.
I accept that the applicant has been confronting some difficulties in his life. He was involved in a fatal motor vehicle accident while he was working as an Uber driver. That resulted in criminal proceedings and a conviction in February 2019. He is subject to a community service order. His defence of the criminal proceedings was expensive. In my view, while I acknowledge those difficulties, some time has now passed since the conviction in February. The applicant told me this afternoon that his circumstances now were much the same as they were in mid-April when he made the adjournment request. There is, in my view, nothing to be gained by a delay of today’s hearing. I refused the adjournment request.
I invited oral submissions from the applicant this afternoon. He told me that he expected to receive protection. He noted that neither the delegate nor the Authority granted him the protection he sought. It is obvious that he is disappointed with the outcome. He was not, however, able to advance any legal argument warranting a final hearing.
The only issue in this case which might have warranted a final hearing was the question of the information before the authority. This is dealt with by the Authority from [3] through to [10] of its reasons:
I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act).
On 3 August 2018, the IAA received a submission on behalf of the applicant. The submission addresses the delegate’s decision and findings; it is not new information, and I have had regard to it.
In the submission, it was argued there were deficiencies in the interpreting in the SHEV interview. That the interview started at 9:13am and was stopped at 9:49am because of problems with the quality of the interpreting; the case officer, the applicant and solicitor had some discussion about the quality of the interpreting, but the case officer did not want to change interpreters. The SHEV interview recording was paused for this period of time. Unfortunately, the delegate did not explain, for the benefit of the recording, why he stopped the recording and what happened in the intervening period before he resumed recording.
Before the recording was stopped, the delegate said he would move on from his line of questioning about what specifically happened to the applicant’s father and brother to make them leave Bangladesh in 2014 and go to Malaysia, because he said he was not getting anywhere. The migration agent responded on behalf of the applicant and said the applicant can explain it quite well, it is just that there are issues here. The delegate said he had the applicant’s SHEV application and he said he talks to his wife every day, and he expected the applicant would know the information he requested. The migrant agent said they could make another statement. The delegate said there will be time for that afterwards. The delegate then paused the recording of the interview. When the recording resumed, the delegate said they would try just one last time, and asked what was the event or events that caused the applicant’s father to leave. The applicant responded in Bengali, he was interpreted in English, and the interview continued. There was no discussion about any interpreting issues in the recording of the interview.
At point five of the applicant’s post-interview submission to the delegate dated 12 June 2018, the applicant briefly stated the reasons why his father and one brother went to Malaysia, and the information given supported that given in the SHEV interview, via the interpreter. This point addressed the line of questioning which preceded the delegate's decision to pause the SHEV interview. I consider the applicant was given, and took, the opportunity during the SHEV interview and in the post-interview submission to state his claims in this regard.
It was further argued in the IAA submission that the interpreter often made little sense and the translations the interpreter gave after a two minute statement by the applicant resulted in a one phrase answer. Having listened to the SHEV interview, I do not agree with this argument. I understood the English language of the interpreter and did not detect instances when the applicant spoke for two minutes in Bengali and the interpreting into English was a one phrase answer. The applicant’s submission to the IAA did not identify any inaccuracies in the interpreting at the SHEV interview.
The applicant’s post SHEV interview submission to the delegate made a number of points about the inability of the applicant to explain himself adequately, and argued that generally departmental case officers place the answers of applicants into their own world view and despite the applicant’s case officer being responsive to the applicant’s answers, he was aware that the interpreter was not competently translating the applicant’s responses into adequate English, and the result is a vast cultural gap between the parties. No particular inaccuracies in the interpreting were highlighted in the submission. The delegate’s decision addressed this issue and stated he gave little weight to the applicant’s submissions about the interpretation at the SHEV interview as no inaccuracies were demonstrated. He stated if there were inaccuracies, the applicant had the opportunity of submitting examples to support his claims in his post interview submissions, which he did not do. He said the interpreter was accredited by the National Accreditation Authority for Translators and Interpreters (NAATI), and he found the interpreter at the SHEV interview correctly conveyed the applicant’s testimony.
It was also argued that the delegate chose to ignore the post-interview submission. However, the delegate’s decision clearly addressed the post-interview submission, including the claim about the quality of interpreting. While the applicant did not request an interview with the IAA, I considered whether getting new information from the applicant in writing or at an interview may be warranted, and I am not satisfied that it is.
As the Authority pointed out at [5] of its reasons, it is unfortunate that the delegate stopped the recording of the interview before him without any explanation. The applicant had asserted interpretation problems as the reason for the pause in the recording, but there was nothing available to the Authority to support that assertion. The Authority took the precaution of listening to what was on the recording and could not detect any interpretation problems.
At [10], the Authority states that it considered obtaining new information from the applicant either in writing or at interview. The Authority concluded that that action was not warranted in the circumstances of this case. As the Minister submits, that was within the range of available alternative exercises of the discretion available to the Authority. I detect no arguable case of jurisdictional error by the Authority in that regard.
I otherwise agree with the Minister’s submissions concerning the ground of review advanced.
The sole ground of review is an unparticularised assertion of error that cannot succeed in the absence of meaningful particulars. The failure to particularise a ground of application is itself sufficient to warrant dismissal of that ground.[22]
[22] AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35]; WZAVW v Minister for Immigration [2016] FCA 760 at [35]
The Authority understood and considered the applicant’s claims and evidence and made findings that were open to it. The Court cannot review the merits of the Authority’s decision. Further, the Authority conducted the review in accordance with the relevant provisions of Part 7AA of the Migration Act.
New information and s.473DC(3)
The Authority had regard to the review material provided by the Secretary under s.473CB of the Migration Act.[23] On 3 August 2018, the Authority received a submission from the applicant’s representative. To the extent that the material addressed matters that were before the delegate, the Authority found that it was not “new information” and had regard to it.[24]
[23] CB 200 at [3]
[24] CB 200 at [4]
The complaint made by the applicant’s representative in the Authority submission was that there were deficiencies in the interpretation provided at the SHEV interview, which resulted in the recording of the interview being stopped for a period of time.
There is no evidence to support any contention that the process before the delegate was deficient in any way that could affect the Authority’s decision.[25] In particular, it would not be open to the Court to conclude that the Authority erred by failing to put information to the applicant[26] or by unreasonably failing to exercise its discretionary powers to get documents or information from the applicant[27] (and consider it subject to the requirements of section 473DD).[28]
[25] Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481; [2018] HCA 16 at [71]
[26] Section 473DE
[27] Section 473DC
[28] Plaintiff M174/2016 at [48]–[49], [71]
The Authority considered this issue at [5]–[10] of its decision record.[29] In particular, the decision record notes:
a)the complaint made by the representative in the Authority submission;[30]
b)that “[u]nfortunately, the delegate did not explain, for the benefit of the recording, why he stopped the recording and what happened in the intervening period before he resumed recording”;[31]
c)before the recording stopped, the delegate was questioning the applicant about what caused his father and brother to leave Bangladesh in 2014 for Malaysia, with the delegate asking essentially the same question when the recording resumed;[32]
d)there was no discussion about any interpreting issues on the recording;[33]
e)the post-interview submission specifically addressed this issue, which resulted in the Authority finding that the applicant was given, and took, the opportunity during the SHEV interview and in the post-interview submission to state his claims in relation to this issue;[34]
f)no particulars of inaccuracies in interpretation at the SHEV interview were provided in either the post-interview submission or the Authority submission;[35] and
g)the delegate considered the complaints about the standard of interpretation made in the post-interview submission.[36]
[29] CB 200–201
[30] At [5]
[31] At [5]
[32] At [6]
[33] At [6]
[34] At [7]
[35] At [8], [9]
[36] At [9]–[10]
In light of these considerations, the Authority stated that it “considered whether getting new information from the applicant in writing or at an interview may be warranted”, and was not satisfied that it was.[37] This statement reflects the Authority’s consideration of whether to exercise its discretion in s.473DC(3) of the Migration Act, and its decision to decline to do so in the circumstances it explained in its decision record.
[37] CB 201 at [10]
In the circumstances, the Authority’s decision not to exercise its discretion under s.473DC(3) was legally reasonable, that is, it fell within the range of possible, acceptable outcomes that are defensible in respect of the facts and law.[38] This is because, first, the Authority considered, but declined, to exercise that discretion and gave cogent reasons for refusing to do so and, secondly, the Authority acted in accordance with the statutory regime. In particular, the Authority was required to review the delegate’s decision “on the papers”.[39] Sub-section 473DC(1) permits the Authority, subject to Part 7AA, to “get any documents or information” that “were not before the Minister when the Minister made the decision under section 65” and “the [Authority] considers may be relevant”. Sub-section 473DC(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”. Accordingly, in light of both the factual and statutory context, the Minister submits that the Authority acted in a legally reasonable way.[40]
[38] Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [105] per Gageler J
[39] Section 473DB of the Migration Act
[40] Cf. Plaintiff M174/2016 esp. [74] per Gageler, Keane and Nettle JJ. See also BEL18 v Minister for Home Affairs [2018] FCA 2103 at [83]–[85].
Further, the Authority conducted its review in accordance with the provisions of Part 7AA of the Migration Act, and properly considered the applicant's claims and the totality of the evidence before it. The Authority’s findings were not ones at which “no rational or logical decision maker could arrive on the same evidence”.[41] Nor did the Authority’s reasons lack an “evident and intelligible justification”.[42]
[41] Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] per Crennan and Bell JJ
[42] Li at [76] per Hayne, Kiefel and Bell JJ
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant is concerned about the prospect of a costs order, having regard, in particular, to the expenses he has incurred in relation to his criminal prosecution. I explained to him the options that may be available to him in order to deal with the debt which would result from a fixed costs order. The applicant also sought clarification of his rights of appeal, which I gave him.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 May 2019
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