FJE18 v Minister for Immigration and Anor
[2019] FCCA 3849
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FJE18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3849 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misconstrued s 473DC and 473DD of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473DC, 473DD |
| Applicant: | FJE18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2887 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 19 December 2019 |
| Date of Last Submission: | 19 December 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondents: | Mr Hillyard, Sparke Helmore |
ORDERS
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2887 of 2018
| FJE18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from transcript)
Introduction
The applicant is an ethnic Bengali Muslim from Bangladesh. On 16 September 2016 he applied for a Safe Haven Enterprise (subclass 790) visa. The applicant claimed to fear persecution from the Awami League government, politicians, workers, and supporters, including the Jubo League and the police, because he was a Bangladesh Nationalist Party (“BNP”) activist and so were his two elder brothers. On 4 June 2018 a delegate of the Minister for Home Affairs refused the applicant the visa.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 18 September 2018, the Authority affirmed the decision not to grant the applicant a protection visa. The applicant now seeks judicial review of the Authority’s decision.
The question for the Court to determine is whether or not the Authority’s decision was affected by jurisdictional error. For reasons which will become apparent later in this judgment, a full summary of the Authority’s decision will not be set out.
The following matters are relevant to the application before the Court:
·On 6 July 2018, the Authority received a submission from the applicant. The Authority determined to receive it. It addressed the delegate’s decisions and findings and as such it was not new information.
·On 20 August 2018 the Authority wrote to the applicant giving him a copy of information that was before the delegate of the Minister, which was obtained from his immigration detention property records.
·The information was a copy of his FOMEMA medical card in the applicant’s name from Malaysia. The medical card records the last medical examination date as 16 May 2012, and indicated the applicant worked in Malaysia from around that time for an employer by the name of Unilink SDN BHD.
·The applicant was invited by the Authority to confirm what dates he travelled to Malaysia, what dates he departed Malaysia and provide any other comments on the matter.
·By letter dated 10 September 2018, the applicant responded to the Authority’s invitation to comment. The Authority was satisfied there were exceptional circumstances to justify considering the applicant’s response for comment and this was new information. The Authority was satisfied that the requirements of s 473DD(a) of the Migration Act 1958 (Cth) (“the Act”) were met in order for it to consider this new information.
Grounds of Appeal
One ground of appeal has been filed with the Court. It is as follows:
The IAA has misconstrued section 473DC and 473DD of the Migration Act 1958 (Cth).
Particulars:
The IAA has misconstrued section 473DC and 473DD by failing to provide the applicant with an opportunity to satisfy the Authority that the “new information” provided by the applicant and as determined by the assessor meets the criteria as enumerated in section 473DD(b)(i) and (ii).
Applicant’s Submissions to the Court
The applicant appeared before the Court unrepresented by a legal practitioner but assisted by an interpreter. Despite orders of the Court to do so, no written submissions were filed in support of his application. In the applicant’s oral submissions to the Court, the applicant said that he had provided enough information to prove that he was involved with the BNP.
The applicant said that the BNP party leader is currently in jail. The applicant questioned what chance would he have as an ordinary citizen and as a BNP supporter if he were returned. The applicant said that last December his two elder brothers were beaten. The applicant said he wants to stay in Australia until the BNP comes to power. The applicant does not require and does not ask for citizenship. The applicant simply wishes to be able to stay in Australia until the BNP are returned to power.
In the applicant’s response to the first respondent’s oral submissions, the applicant said he would really like to stay and reiterated that he is a BNP supporter. The first respondent contended that the ground of appeal was misconceived. The first respondent noted that there was no new information that was not considered by the Authority or that the Authority refused to consider.
The only new information submitted to the Authority was the applicant’s response to the invitation letter. The Authority was satisfied that the response met the requirements of s 473DD of the Act and considered it before making its decision. The Authority also referred to the submission made by the applicant but, while finding it was not new information, it was able to have regard to it.
Consideration
In my view, no ground of jurisdictional error has been made out. The Authority had regard to the submissions of the applicant, finding it was not new information. The Authority determined that the applicant’s response to its letter of 20 August 2018, was new information and the criteria under s 473DD(a) of the Act were met. Accordingly, the Authority considered the information.
There was no other new information that was before the Authority that was either rejected or not considered as being new information. The ground of appeal, in my view, is misconceived.
I have considered and looked at the decision carefully because the applicant is unrepresented. I am satisfied there was no other jurisdictional error apparent on the face of the record which has not been articulated by the applicant.
The applicant asserted that the Authority should have shown him why he was not a BNP supporter. It was explained to the applicant that it was not for the Authority to conduct an inquisition or inquiry into his claims. Rather it was for the applicant to prove his claims to the Authority.
Conclusion
I am not satisfied that there is any jurisdictional error, either in the claims or otherwise.
The application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 5 February 2020
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