FPL17 v Minister for Immigration

[2018] FCCA 1331

FEDERAL CIRCUIT COURT OF AUSTRALIA

FPL17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1331

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to correctly apply s 473DD(b) of the Act – whether the Authority denied the applicant procedural fairness – no jurisdictional error made out – application dismissed.

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

Applicant: FPL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3951 of 2017

Judgment of: Judge Street

Hearing date: 23 May 2018

Date of Last Submission: 23 May 2018

Delivered at: Sydney

Delivered on: 23 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. Grant leave to the solicitor on the record to withdraw.

2. The oral application for an adjournment is refused.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3951 of 2017

FPL17

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) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 11 December 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 arrived in Australia as an unauthorised maritime arrival on 5 February 2013. The applicant was found to be an ethnic Bengali and a Sunni Muslim originating from a particular area in the Narsingdi District in Bangladesh’s Dhaka Division.

3. The applicant alleged he was forced to leave Bangladesh because of political reasons as he was a known supporter of the Bangladesh National Party (“BNP”) and because of his cousin who is a nearby neighbour and a supporter of the rival Awami League, also referred to by the applicant as the non-Islamic party, who arranged for some other supporters of the non-Islamic party to assault him and his brother and father in 2010. The applicant alleged he suffered injuries as a result of that attack. The applicant alleged that his father, his brother and he reported this attack and that after six months the attacks began again.

4. The applicant alleged that almost every month, either verbally or physically, he was attacked until he departed Bangladesh at the end of 2011. The applicant alleged he suffered injuries as a result of the attacks. The applicant alleged the non-Islamic party targeted supporters of BNP throughout the country, so he moved to another part of the country. The applicant fears that if he returns to Bangladesh he will be subject to harm including being killed by the supporters of the non-Islamic party because of his support for the BNP. On 21 April 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. On 27 April 2017, the Authority wrote to the applicant explaining that the application for a protection 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 took advantage of that opportunity and provided submissions dated 15 May 2017, by two emails which were referred to in the Authority’s reasons.

2. The Authority had regard to the materials given to them by the Secretary under s 473CB of the Act. The Authority had regard to the applicant’s submissions provided on 15 May 2017, to the extent that they were submissions dealing with the delegate’s decision and took the same into account. The Authority did not have regard to new information provided in the submission being information about why the applicant supported the ideology of the BNP. The applicant claimed to have awareness of alliances between BNP and Jamaat e-Islami and the information that his cousin began his attacks because of the Awami League’s 2008 victory.

3. The Authority was not satisfied this information was credible personal information that the applicant could not have provided to the delegate or that there were exceptional circumstances to justify considering the new information. The Authority noted the submission referred to material quoted from an unknown source about attitudes of young people in Bangladesh towards politics. The Authority noted the new information was country information, rather than personal information. The Authority found the requirements of s 473DD(b) of the Act were not met and that there were not exceptional circumstances to justify considering the new information.

4. The Authority also identified new information in the applicant’s submission which claimed that the applicant was involved in rallies, meetings and protests and that a number of persons in Bangladesh politics are members of multiple political parties and the applicant could not get a voter ID in Bangladesh as a BNP supporter and because the Awami League controlled his area. The Authority was not satisfied this information was credible personal information that the applicant could not have provided to the delegate, and found that there were not exceptional circumstances to justify considering it.

5. The Authority identified various inconsistencies between the applicant’s various claims in his visa application and his claims at the delegate interview as to which political party the applicant and his family supported and how those parties were related, as well as to whether it was his cousin or neighbours who attacked him and whether he had departed Bangladesh due to lack of money or work or due to his political involvement. The Authority did not find the applicant’s evidence convincing and was not satisfied the applicant or any member of his family was a supporter of the BNP or Jamaat e-Islami. The Authority did not accept the applicant’s claims to have suffered past harm on that basis.

6. Considering the applicant’s evidence as a whole, the Authority was not satisfied the applicant has any genuine fear of harm in Bangladesh. The Authority also considered whether the applicant would face harm as a failed asylum seeker and was not satisfied the applicant would face a real chance of harm on this basis. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

7. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Bangladesh, there is a real risk the applicant will 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.

Before this Court

1. On 19 December 2017, proceedings were commenced in this Court seeking relief in respect of the Authority’s decision. On 18 May 2018, a notice of address for service was filed by the applicant indicating that the applicant was representing himself, providing the applicant’s email address and was signed by the applicant with the same signature that the applicant signed his affidavit in support of the originating application.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing being a final hearing, including the grounds identified in the applicant’s application that the Court would take into account in determining whether there was any relevant legal error by the Authority. The applicant confirmed that he understood the nature of the hearing explained by the Court.

The applicant’s submissions from the bar table

1. From the bar table, the applicant indicated that he wished to seek an adjournment. The applicant contended that he had no idea that his legal representative was going to withdraw. The Court asked the applicant what steps he had taken to obtain legal representation upon becoming aware that his lawyer was withdrawing. The applicant indicated that he only became aware last week. No explanation was given by the applicant as to the taking of any steps to obtain another lawyer. The applicant then asserted from the bar table that it was not until today that he became aware that his lawyer was withdrawing. That assertion is entirely inconsistent with what the applicant both said to this Court and inconsistent with the document signed by the applicant dated 18 May 2017.

2. The applicant submitted that he was not in a position to participate in the hearing. The Court gave the applicant an opportunity to put submissions in support of the grounds in his application and as to why the applicant contended that the Authority’s decision was unlawful or unfair. The applicant repeated that he was not in a position to participate and he had not prepared to conduct the hearing. The Court took into account that the adjournment was opposed by the first respondent. The first respondent referred to the time of commencement of the proceedings and the notice dated 18 May 2017, being inconsistent with the assertions advanced by the applicant, as well as the lack of utility in the granting of an adjournment given the absence of any relevant error and the weakness of the grounds in the applicant’s application.

3. The applicant’s explanation as to being unable to put submissions, I find, was contrived. The applicant had earlier clearly articulated a complaint that he was not given an opportunity to put submissions to the Authority. I find the applicant deliberately decided not to participate in the hearing when given the opportunity to do so. I am satisfied the applicant has had a real opportunity to put submissions and that the applicant intentionally decided not to participate in the hearing. I do not accept that the applicant was not in a position to put submissions. I find the applicant’s refusal to put submissions is not a proper ground for an adjournment.

4. To the extent that the applicant had earlier made reference to not being invited to give evidence to the Authority, the Authority was not required under Part 7AA of the Act to invite the applicant to attend the hearing and was entitled to determine the review application on the papers. In the circumstances, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. I accept the first respondent’s submission that the grounds are weak and find that there would be little utility in granting an adjournment. I do not accept that the recent change of representation warrants an adjournment.

The grounds

1. The grounds of the application are as follows:

   1. The Immigration Assessment Authority has failed to apply the correct test pursuant to Section 473DD(b) of the Migration Act 1958.

   Particulars:

   In dealing with the Applicant’s claims under Section 473DD(b) of the Migration Act 1958 (Cth) the Immigration Assessment Authority explicitly failed to disaggregate the statutory formulae under 473DD(b) of the Act.

   2. The Immigration Assessment Authority denied the Applicant’s procedural fairness.

Ground 1

1. In relation to ground 1, I accept the first respondent’s submissions that a fair reading of the Authority’s reasons reflect the Authority taking into account both limbs of s 473DD of the Act in determining whether or not the Authority was satisfied that there were exceptional circumstances to justify considering the new information identified in the Authority’s reasons as summarised above. The Authority made express reference to credible personal information, as well as analysing in detail the nature of the information that was being advanced in determining whether the Authority was satisfied that there were exceptional circumstances to justify considering the new information.

2. The Authority’s reasons reflect a consideration of both limbs of s 473DD(b) of the Act in determining whether there were exceptional circumstances to consider the new information. There was no aggregating of the statutory formula by the Authority that meant that the Authority failed to have regard to both limbs of s 473DD(b) of the Act. Nor, on a fair reading of the Authority’s reasons, is there any basis to infer that the Authority adopted an erroneously narrow meaning of exceptional circumstances. Nor is there any basis to find that the Authority applied any erroneous test in assessing whether or not the information was credible personal information. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the generalised assertion of a denial of procedural fairness does not of itself make out any jurisdictional error. The applicant was not, under Part 7AA of the Act, entitled to be invited to attend a hearing to give oral evidence. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. No jurisdictional error is made out by ground 2.

Conclusion

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

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  17 July 2018