FNR17 v Minister for Immigration

[2018] FCCA 1780

FEDERAL CIRCUIT COURT OF AUSTRALIA

FNR17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1780

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether there is a procedural fairness obligation under Part 7AA requiring the applicant to have an opportunity to put on new information or submissions – whether the Authority was required as a matter of legal reasonableness, to give the applicant a second opportunity to address the requirements of s 473DD of the Act in respect of new information – no jurisdictional error identified – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.36, 473DA, 473DB, 473DC, 473DD, 476.

Cases cited:

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 95

COA16 v Minister for Immigration and Border Protection [2018] FCA 475

ESD17 v Minister for Immigration & Anor [2018] FCCA 870

Applicant: FNR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3909 of 2017

Judgment of: Judge Street

Hearing date: 3 July 2018

Date of Last Submission: 3 July 2018

Delivered at: Sydney

Delivered on: 3 July 2018

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: ABU Legal

Solicitors for the Respondents: Mr T Hillyard
Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely on the amended application filed 21 June 2018.

2. The amended application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3909 of 2017

FNR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 20 November 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant applied for a Safe Haven Enterprise visa on 27 February 2017. The applicant arrived in Australia on 11 April 2013 as an unauthorised maritime arrival. The applicant was found to have been born in a particular village in Bangladesh to be of Bengali ethnicity and a Muslim. The applicant claims to fear harm from the Awami League, because he was a member of the Jamaat-e-Islami political party. 

3. On 11 August 2017 the delegate found the applicant failed to meet the criteria for a protection visa.

The Authority’s decision

1. By letter dated 16 August 2017, the Authority informed the applicant that the matter had been referred to the Authority for a review. The letter informed the applicant that the Department had provided the Authority with all the documents considered relevant to the applicant’s case, and that this includes any material the applicant provided to the Department officer before the decision to refuse a protection visa. The letter identified that:

   The Authority will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information.

2. The letter explained:

   We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.

3. The Practice Direction relevantly contained the following:

   Submissions and new information

   20. For the purposes of the review, you may provide a written submission on the following:

   • why you disagree with the decision of the Department

   • any claim or matter that you presented to the Department that was overlooked.

   21. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should:

   • be no longer than 5 pages,

   • be easily legible using a font size of at least 11 point with standard margins of at least 2.54cm, and

   • should be provided to us within 21 days of your case being referred to us by the Department.

   22. We may return longer submissions or submissions that do not comply with these requirements. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

   23. We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

   24. If you want to give us new information, you must also provide an explanation in writing as to why:

   • the information could not have been given to the Department before the decision was made, or

   • the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.

   25. Your explanation should be no longer than 5 pages and must accompany any new information you give to us. If you provide to us, or refer in your submission to any new information, your explanation must specify why that new information is relevant to the review.

   26. If you provide or refer to new information such as country information reports or media articles, you must provide a copy of that information or extract part(s) of the information on which you rely. You must identify the source of the information. Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.

   27. All documents that are not in English should be translated into English by a translator with a 'Translator' level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.

   28. Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral.

   29. We may separately invite you to provide new information or to comment on new information that may be adverse to your case.

   • If we invite you to provide new information, you must provide that information within the period specified in the invitation.

   • If we invite you to make comments on new information, you must provide those comments within the period specified in the invitation.

   30. You do not need to give us any information or document that you previously gave to the Department.

   31. Reviews will generally be completed within six weeks of referral from the Department.

4. The letter and the documents attached to the letter gave the applicant an opportunity to put on new information and submissions. No page limit applied to the provision of new information. The applicant did provide submissions and new information, which the Authority referred to in its reasons for affirming the decision under review delivered on 20 November 2017. In those reasons, the Authority referred to the background to the visa application and had regard to the material referred to the Authority under s 473CB of the Act.

5. The Authority referred to the submissions dated 12 September 2017 and insofar as those submissions engaged with the delegate’s reasons, the Authority had regard to the same. The Authority identified that the submissions contained country information that was not before the delegate and which the Authority found to be new information. The Authority referred to the articles being all published either in 2015 or 2016, predating the delegate’s decision and containing general country information. The Authority found that it was not satisfied the information could not have been provided to the Minister before the decision was made. The Authority found that it was not satisfied that the new information was credible personal information, that had it been known, may have affected the consideration of the applicant’s claims.  The Authority referred to having regard to the totality of the circumstances and not being satisfied that there were exceptional circumstances to justify considering the new information.

6. The Authority found the applicant’s protection claims were fundamentally different to the reasons that he advanced for leaving Bangladesh in his arrival interview. The Authority observed that at the arrival interview, the applicant made no mention of his father’s political involvement, his problems whilst attending the Madrasah schools, his claims regarding the disappearance, death and jailing of his classmates who were Jamaat-e-Islami supporters, or the threats regarding the family land. The Authority found the applicant had made no claims of being personally attacked by the Awami League student wing or Chatra League members, and that his main concern was his ability to work during times of strike.

7. Given the substantial discrepancies and lack of further detail provided when questioned about the claimed incidents in the Safe Haven Enterprise Visa application, and that the applicant’s claims seemed to inflate over time, the Authority was not satisfied the applicant was a reliable witness, and found that the applicant lacked credibility in general.

8. The Authority did not accept that the applicant had been targeted by the Chatra League, the student wing of the Awami League as a student, or after his studies. The Authority was not satisfied the applicant had been targeted by the Awami League members in general, or that his father had been attacked or his family’s land taken. The Authority found the applicant left Bangladesh for economic reasons and because he was unable to work due to continuous strikes, which the Authority noted was supported by country information.

9. The Authority accepted the applicant supported Jamaat-e-Islami and might also have supported the student wing of Jamaat-e-Islami, but found that the applicant was not a member of either Jamaat-e-Islami or the student wing, and that the country information indicated that mere supporters do not face a real chance of being targeted. The Authority was not satisfied the applicant had a well-founded fear of persecution because of his support for Jamaat-e-Islami or the student wing. 

10. The Authority, on the basis of country information, was not satisfied there was a real chance that any penalties would be enforced against the applicant, or that he would suffer any harm as a consequence of his illegal departure from Bangladesh. The Authority noted from country information that most returnees, including asylum seekers, were not subject to adverse attention from the authorities, and that the applicant did not have a high profile, had not engaged in any political activities outside of Bangladesh and had not been convicted of war crimes in absentia. The Authority was therefore not satisfied the applicant faced a real chance of any harm as a returning asylum seeker who departed unlawfully or returning as a failed asylum seeker who departed unlawfully.

11. The Authority found the applicant did not meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The single ground of the amended application is as follows:

   1. 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).

The ground

1. Mr Bodisco of counsel submitted that the Authority under Part 7AA is required to engage in a two-stage process in giving the applicant an opportunity to address whether or not new information should be considered under s 473DD of the Act. Mr Bodisco submitted that the applicant did not know from the Authority’s letter, what information the Authority would determine to be new information, and that the applicant should, as a matter of either procedural fairness or legal reasonableness, be given an opportunity to then address what the Authority identifies as new information and whether the same meets the limbs of s 473DD of the Act. No complaint was made in the present case, correctly so by Mr Bodisco that the Authority in some way misconstrued or failed to apply both limbs of s 473DD of the Act.

2. Mr Bodisco contended that before the Authority determined whether there were exceptional circumstances for the purpose of making the Authority’s decision, the Authority should have permitted the applicant a chance to be heard or put on more submissions as to whether the limbs of s 473DD of the Act are satisfied. Mr Bodisco submitted that in determining the issues involved under s 473DD(b) of the Act, the assessor must provide the applicant with an opportunity to satisfy the Authority that the new information was not and could not have been provided to the Minister before the Minister made the decision under s 65 of the Act. Mr Bodisco submitted that there is a two-step process for the material is not new information, as defined, until the assessor has come to a state of mind regarding the relevance of the documents. 

3. Mr Bodisco referred to the provisions of s 473DC of the Act providing a mechanism by which the Authority may invite the applicant orally or in writing to make submissions regarding the two-part test contained in s 473DC(3) of the Act. Mr Bodisco submitted that this mechanism was not used and therefore, the applicant was denied an opportunity of satisfying the assessor as to the criteria contained in s 473DD(b) of the Act. 

4. Mr Bodisco submitted that on the proper construction of s 473DD(b)(i) of the Act, the assessor was required to give the applicant an opportunity to advance arguments or explanations for the purpose of the requisite satisfaction contemplated in section 473DD(b)(i) prior to forming the view as to whether there were exceptional circumstances to consider the material contained in the submission. Mr Bodisco submitted the fact that the applicant was represented did not dispense with the requirements to afford the applicant the opportunity contemplated pursuant to s 473DD(b)(i) of the Act. Mr Bodisco submitted that the Authority erred by arriving at a conclusion that exceptional circumstances did not exist without complying with the statutory requirements in s 473DD(b)(i) of the Act by denying the applicant the opportunity to satisfy the Authority as to whether the material, “was not, and could not have been, provided to the Minister before the Minister made the decision under s 473DD(b)(i) of the Act.”

5. Mr Bodisco also referred to what was said in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [8] – [9] in support of his argument. The Court drew attention to a decision of the learned Rares J in COA16 v Minister for Immigration and Border Protection [2018] FCA 475 at [37] – [38] which is as follows:

   37 His Honour did not identify the source of any obligation of procedural fairness that required the Authority to afford an applicant, in the circumstances, any opportunity to provide new information or put submissions. There is nothing in Pt 7AA that prevents an applicant for a visa putting submissions or providing whatever he or she wishes to the Authority for it to consider as new information. However, the material before me does not suggest that, in the circumstances, Pt 7AA imposed on the Authority any obligation to afford an applicant any opportunity to provide new information or put submissions to it.

   38    To the extent that the statement by his Honour formed part of his reasons, as opposed to being an unnecessary observation, it was wrong in the circumstances, for the reasons I have given. The Authority had no obligation to provide the appellant with an opportunity to provide new information or put submissions, albeit that he exercised his freedom to provide new material, in the form of the two letters and the translation, to the Authority. It considered those letters and found that it was not able to take them into account as “new information” within the meaning of s 473DD, for the reasons that I have set out above, and those reasons appear to me to have been both open to it and correct.

6. Those observations of his Honour were made in the context of determining an appeal from this Court, where this Court had referred to the Authority complying with the requirements of procedural fairness by the sending of a letter to the applicant, informing the applicant that there was a review being undertaken, and by providing the attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information. 

7. The Court also drew attention to the observations of this Court, after that decision was delivered, in ESD17 v Minister for Immigration & Anor [2018] FCCA 870 at [5] – [6] as follows:

   5. By a letter dated 21 June 2017, the Authority informed the applicant that the matter had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information. That is consistent with the obligations of the second respondent when conducting a review under Part 7AA of the Act, because whilst there is a constraint by reason of the statutory provisions of the natural justice hearing rule, Part 7AA of the Act is not a process that is conducted in secret. Subject to the statutory provisions excluding the same, obligations of procedural fairness still apply to the exercise of statutory powers.

   6. A review under Part 7AA of the Act is the subject of an exclusion referrable to the natural justice hearing rule, but that does not mean that the Authority would be entitled to conduct the review without informing the applicant that a review is taking place, or that the Authority would be entitled to conduct a review without giving an applicant an opportunity to put on submissions in respect of the review or an opportunity to put on new information. Further, the Authority would not be entitled, consistent with the requirements of procedural fairness if submissions were provided in response to the letter sent by the applicant, to ignore the same in the conduct of the review, unless immaterial, any more than it would be entitled not to determine and consider whether any new information met the criteria under the Act. In that regard, the Authority does have an obligation of procedural fairness in the nature of legal unreasonableness that applies in relation to Part 7AA of the Act.

8. I accept Mr Hillyard’s submission that I am bound by the dicta of Rares J in COA16 v Minister for Immigration and Border Protection [2018] FCA 475 at [37] – [38] in relation to Part 7AA not imposing an obligation of procedural fairness. Notwithstanding Mr Bodisco’s submissions to the contrary, his Honour clearly articulated that this Court was wrong to refer to Part 7AA as imposing a procedural fairness obligation requiring the applicant to have an opportunity to put on new information or submissions. His Honour however was not addressing the scope of the statutory powers under Part 7AA and the constraints imposed by legal unreasonableness.

9. Procedural fairness is of itself concerned with the process that is undertaken by a Court or administrative body exercising statutory power. I accept Mr Hillyard’s submissions given the content of s 473DA and s 473DB of the Act and in particular the exclusion of the natural justice hearing rule, that there is not a requirement of procedural fairness that imposes an obligation upon the Authority either to give the applicant an opportunity to put on submissions or new information. There is however in my opinion, as identified in the decision of ESD17 v Minister for Immigration & Anor [2018] FCCA 870, an obligation of legal unreasonableness that applies to the provisions of Part 7AA. If the Authority were to conduct a review in secret, on its face, that would be a legally unreasonable exercise of statutory power. If the Authority were to conduct a review in circumstances where the applicant had no opportunity to put on new information and submissions, that also may be legally unreasonable, depending upon the circumstances of the particular case.

1. In the present case, Mr Bodisco relies upon the provisions in s 473DC and s 473DD of the Act to identify that there are different steps being undertaken by the Authority in the process of assessing whether there is new information and then determining whether or not the Authority is allowed to consider the new information. Whilst I accept the proposition that there are two steps being undertaken in that regard, I do not accept the submission that the Authority was required as a matter of legal reasonableness, to give the applicant a second opportunity to address the requirements of s 473DD of the Act in respect of new information.

2. The Authority’s letter put the applicant on notice that there are limited circumstances in which new information could be considered. The Authority’s letter gave the applicant an opportunity, without page limitation, to put on new information, as well as an opportunity subject to page limit to put on submissions.  That opportunity was one in which the applicant was on notice that there must be exceptional circumstances to justify considering the new information provided to the Authority. The applicant was on notice in respect of an opportunity to provide an explanation as to why the information could not have been given to the department before the decision was made, or why the information is credible personal information, which was not previously known and may have affected consideration of the applicant’s claims, had it been known, as identified in paragraph 24 of the Practice Direction.

3. In those circumstances, there is no legal unreasonableness by the Authority, having found that the country information was new information, in proceeding to determine whether or not the Authority could consider the same under s 473DD of the Act without giving the applicant a further opportunity to be heard or to put on submissions. No jurisdictional error as alleged in ground 1 is made out. 

4. As the application fails to make out any jurisdictional error accordingly, the application dismissed.

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

Date:  31 August 2018