FHK18 v Minister for Home Affairs

[2019] FCCA 559

FEDERAL CIRCUIT COURT OF AUSTRALIA

FHK18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 559

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority adopted an erroneous or narrow construction of s 473DD of the Act – whether the Authority misconstrued its statutory task – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 473FB, 476

Cases cited:
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110

Applicant: FHK18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2866 of 2018

Judgment of: Judge Street

Hearing date: 7 March 2019

Date of Last Submission: 7 March 2019

Delivered at: Sydney

Delivered on: 7 March 2019

REPRESENTATION

Counsel for the Applicant: Ms U Okereke-Fisher

Solicitors for the Applicant: Abu Legal

Solicitors for the Respondents: Ms K Morris
Clayton Utz

ORDERS

1. Grant leave to the Applicant to rely upon the Further Amended Application annexed to the affidavit filed on 4 March 2019 and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The Further Amended Application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER 7 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2866 of 2018

FHK18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 20 September 2018 affirming a decision of the delegate to not provide the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Bangladesh and his claimed were assessed against that country. The applicant arrived in Australia on 24 March 2013 as an unauthorised maritime arrival. The applicant claimed to fear harm because he is a supporter of the opposition Bangladesh National Party (“BNP”), and because he refused to join or work with for the ruling of Awami League party. On 24 April 2018, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

3. On 30 April 2018, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions dated 20 May 2018. The Authority in its reasons expressly referred to those submissions, which it is apparent was sent under cover of an email dated 21 May 2018.

4. The Authority in its reasons identified the background of the visa application. The Authority had regard to the material given by the Secretary under s 473CB of the Act. The Authority referred to the applicant’s submissions, and insofar as they engaged with the delegate's findings and decision, or reiterated claims or evidence already given, the Authority found the same was not new information and had regard to the same.

5. The Authority referred to the submission by citing country information that was not before the delegate. The Authority dealt with the issue of whether or not there had been compliance with the Practice Direction and did not accept the articles under s 473FB(5) of the Act, given the non-compliance with the Practice Direction. The Authority then continued and addressed the webpage articles, including the Wellbeing article, and found that the Authority was not satisfied that the requirements of s 473DD(b) of the Act were met. The Authority referred to there being no explanation why the material was or could not have been provided to the delegate prior to the decision, and also referred to there not being any claim that the new information comprised credible personal information that might have affected consideration of the claims. The Authority referred to the references and that they did not identify when the articles were published, and that there is no claim or explanation that they post-date the decision and could not have been provided prior to the decision.

6. The Authority referred to the applicant being represented throughout the application process, including at the Safe Haven Enterprise visa interview on 19 March 2018, and that written submissions were provided to the delegate after the interview, which included references to country information. It was in those circumstances that the Authority was not satisfied the new information could not have been provided before the delegate's decision. The Authority was also not satisfied that the information referred to, being general country information, is credible personal information. It was in those circumstances the Authority also observed that the applicant had not satisfied the Authority as to either s 473DD(b)(i) or (ii) of the Act.

7. The Authority summarised the applicant's claims. The Authority referred to the submissions as to why claims were not made at the entry interview. The Authority did not accept that the applicant’s inconsistencies in the entry interview should be completely disregarded. The Authority did not accept the applicant was a BNP member. The Authority did not accept the applicant was an active supporter of BNP or that he was known as or perceived locally to be an active BNP supporter. The Authority did not accept the applicant organised or participated in protests or demonstrations or meetings of the BNP.

8. The Authority did not accept that T, any local Awami League party MP. or any other Awami League people had any adverse interest in the applicant at all, or tried to force the applicant to join the Awami League, or used a work contract to try and force the applicant to join the Awami League party. The Authority found the applicant's evidence of his construction contract work, or involvement with T or the Awami League, to be not credible or plausible. The Authority did not accept that the applicant owes wages or any money to any employees.

9. The Authority made express reference to the applicant’s representative's submission that the inability to explain the details of the contract, the building or his interaction with the opposition may be due to problems with his comprehension and verbal ability. The Authority referred to the audio tape as to whether the interview the applicant had difficulty understanding many questions asked and translated to the case officer. The Authority noted from the audio tape of the Safe Haven Enterprise visa interview that the applicant appeared to have some difficulties answering questions asked about his subcontractor role, his involvement with T and his BNP activities, with the interpreter sometimes having to repeat or clarify questions and responses. The Authority was willing to accept the applicant may not be highly educated or sophisticated. However, the Authority found there is no evidence of any diagnosis of a mental or cognitive impairment.

10. The Authority also identified the delegate exhibiting patience in questioning the applicant and asking questions in different ways to allow the evidence to come out. The Authority referred to the audio of the entry interview not exhibiting similar difficulties by the applicant in answering other questions. It was in those circumstances the found the applicant's vague and sometimes incoherent evidence on the issue around his claims may be explainable as that he was attempting in the Safe Haven Enterprise visa interview to recount a history that was not entirely his own personally lived experience.

11. The Authority did not accept that the applicant was beaten or threatened by any person associated with the Awami League, or hired by T, in mid/late 2012 as claimed. The Authority did not accept that the applicant or his family tried to report any such incidents to the police. The Authority did not accept that the Awami League returned to the applicant's home and beat his parents after he left home.

12. The Authority did not accept the applicant left Bangladesh due to fear of harm from the Awami League Party, T, or any other person associated with the Awami League. The Authority did not accept the applicant's claims of threats and physical harm suffered from T, any people hired by him or any person associated with the Awami League. The Authority was not satisfied there is a real chance of the applicant suffering any harm from from the Awami League upon return to Bangladesh.

13. The Authority was not satisfied the applicant has a well-founded fear of harm as a result of any past or future BNP sympathy or support. The Authority was not satisfied the applicant faces a real chance of persecution by the Awami League or anyone else upon return to Bangladesh or in the reasonably foreseeable future.

14. The Authority was not satisfied the applicant faces a real chance of any harm in Bangladesh on the basis of having made a failed application for asylum in Australia. The Authority was not satisfied the applicant faces a real chance of any harm in Bangladesh on the basis of having departed illegally. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s 5J(1) of the Act.

15. The Authority found the applicant did not meet the definition of the requirements of refugee in s 5H(1) of the Act and found the applicant does not meet the criteria in s 36(2)(a) of the Act.

16. The Authority found there are not substantial grounds for believing that, as a necessarily foreseeable consequence of the applicant being returned to Bangladesh from Australia, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

17. The ground in the further amended application is as follows:

    1. The IAA has misconstrued section 473DD of the Migration Act 1958(Cth). The Authority adopted an erroneous construction of s473DD in that it failed to consider the new information in accordance with the law, failed to consider whether it was satisfied that there are exceptional circumstances to justify considering the new information pursuant to s.473DD(a) and adopted an unduly narrow construction of s473DD. In so doing, the Authority misconstrued its statutory task and constructively failed to exercise its jurisdiction under s473DD.

    Particulars

    d) The Appellant submitted now information namely: ("S… impresses as a simple man who struggles with his own language, quite apart from English. His reading and comprehension are limited in Bangla ....") ("Language Information") {CB 1231. The new information is credible personal information pursuant to sub-para (b)(ii).

    e) The Authority failed to consider the Language Information and consequently concluded, albeit erroneously that the Appellant had failed to satisfy the pre-condition in 473DD(b).

    f) The Authority failed to consider whether it was satisfied that there are exceptional circumstances to justify considering the now information pursuant to s.473DD(a).

18. Ms Okereke-Fisher took the Court to the Authority's reasons, as well as to the submissions that were made on behalf of the applicant. In particular, Ms Okereke-Fisher focused upon the paragraph in the submissions to the Authority relevantly as follows:

    The Entry Interview has been taken out of context and emphasis placed on the fact that applicant did not describe any political involvement on arrival. The case officer describes the applicant as not "politically astute" and therefore she rejects that he was a supporter of the BNP. The applicant did not describe himself as a "member", only a supporter, and as there is generally a tradition of family support for the same political party, it is not surprising that he followed his father’s activities in supporting the BNP. The applicant would never describe himself as politically astute and impresses as a simple man who struggles with his own language, quite apart from English. His reading and comprehension are limited in Bangla and listening to the recording of the interview it is obvious to a Bangla speaker that the applicant does not understand many of the questions asked and translated to the case officer. The applicant described being "on call" to do things for the local leadership as required: a role many young men have in villages across Bangladesh.

19. Ms Okereke-Fisher characterised this as language information, and her first submission was that the language information must have been treated as new information in the Authority's reasons and that the Authority had not correctly considered that language information in terms of the requirements of s 473DD of the Act. Ms Okereke-Fisher's argument in that regard was to the effect that the language information did not fall within the content of what the Authority identified in paragraph 4 as submissions raising argument on the delegate's findings and decision or reiterating claims and evidence already given which was said to be not new information and to which the Authority had regard.

20. The Authority's reasons are not to be read with a keen eye for error. On a fair reading of the Authority's reasons, the language information referred to was information to which the Authority had regard and was not treated by the Authority as new information. Further, this is consistent with paragraph 19 of the Authority's reasons, which again on a fair reading clearly took into account the substance of the submissions advanced in respect of the language information. It is apparent the Authority listened to the audio recording, and whilst accepting that in certain areas there had been some difficulties, identified that there were not difficulties in answering other questions.

21. The Court notes that the delegate's decision expressly referred to what occurred at the Safe Haven Enterprise visa interview, and in particular, the applicant's experience in the context of the construction industry and how he had managed the construction site, and a reference to the finding that the applicant's statement was vague and lacked detail and that he was not speaking from his own experience.

22. The Authority's reasons do not provide any basis upon which the Court should find that there was other than a real and genuine engagement with the submissions advanced by the applicant. The Court finds the Authority took into account in its review of the substance of what was described as the language information. There is no jurisdictional error as alleged in failing to treat the language information as new information. There was no request to evaluate the same in respect of the requirements under s 473DD of the Act as it was not treated as new information by the Authority and was taken into account in the review.

23. Ms Okereke-Fisher's next submission was that the Authority, in relation to ground 1, had not taken into account s 473DD(a) of the Act in considering whether or not the identified new information met the requirements of s 473DD of the Act. Whilst it is correct that the Authority's reasons do not make express reference to s 473DD(a) of the Act, it is apparent from the Authority's reasons that there was a reference to the Practice Direction in the immediately preceding paragraph 5. That Practice Direction squarely identifies in paragraph 23 the need to be satisfied that there are exceptional circumstances to justify considering new information provided. This reference in the reasoning supports the Authority taking into account the whole of s 473DD of the Act.

24. The Authority's reasons are not to be read with a keen eye for error. In the circumstances of the present case, given the reference to the country information in the nature of webpage articles and the absence of the explanation in respect of when they were published and the fact that the applicant had been represented throughout the proceedings, the Court is not satisfied that there is any proper basis to infer that the Authority failed to have regard to the whole of s 473DD of the Act in determining that the requirement of s 473DD(b) of the Act are not met.

25. Ms Okereke-Fisher took the Court to a number of authorities, including a Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at paragraph [36], as well as at paragraphs [67] through to [73]. The reference to the representation throughout the proceedings is not a matter of the kind that expressly is identified in s 473DD(b)(i) or (ii) of the Act. Whilst it is in part a matter that might be said to overlap with the considerations, it is also on its face a matter of a kind that is relevant to s 473DD(a) of the Act. This is a further reason why the Court finds in the present case that there is no proper basis to conclude that the Authority failed to have regard to the whole of s 473DD of the Act in assessing the new information.

26. The Court does not accept the submission advanced that the Authority adopted or gave a narrow meaning to s 473DD of the Act. Insofar as the submission concerning s 473DD of the Act was advanced on the basis that in considering the new information, express reference should have been made to the language information, the Court does not accept that submission. The Authority's reasons must be read as a whole, and it is apparent that the Authority took into account the substance of the submission as to the language information that was advanced.

27. Ms Okereke-Fisher submitted that the new information in relation to the applicant's limited comprehension and reading of Bangladeshi was a new claim or integer that had to be the subject of an express finding. No such ground was advanced. The Court does not accept that the language information required any further analysis or finding than that identified in the Authority’s reasons including paragraph 19. The context of the submission advanced in the email dated 20 May 2018 was identified and was addressing the significance of the entry interview and the applicant's answers.  No jurisdictional error as alleged in ground 1 of the further amended application is made out.

28. Accordingly, the further amended application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 April 2019