FPM17 v Minister of Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 626
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FPM17 v Minister of Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 626
File number(s): SYG 3953 of 2017 Judgment of: JUDGE OBRADOVIC Date of judgment: 10 August 2022 Catchwords: MIGRATION – Application to review decision of the Immigration Assessment Authority – new information within meaning of s.473DD – whether authority made jurisdictional error in its consideration of the new information – whether information was new information – whether new information was credible personal information – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss.5H, 36, 65, 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 7 April 2022 Place: Parramatta Counsel for the Applicant Ms Okereke-Fisher Solicitor for the Applicant Abu Legal Pty. Ltd. Counsel for the First Respondent: Mr Kay-Hoyle Solicitor for the First Respondent: Mills Oakley ORDERS
SYG 3953 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FPM17
Applicant
AND:
AND:
MINISTER OF IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
10 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to the Minister of Immigration, Citizenship and Multicultural Affairs.
2.The Amended Application for Judicial Review filed 29 March 2022 is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $5,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
This is an application for judicial review of a decision of the Immigration Assessment Authority (“Authority”) dated 12 December 2017, whereby the Authority affirmed the decision of the delegate of the first respondent (“delegate”) dated 3 May 2017, not to grant the applicant a protection visa pursuant to s.65 Migration Act 1958 (Cth) (“Act”).
Background
The Applicant is a citizen of Bangladesh.
On 11 April 2013, the applicant arrived in Australia by boat. On 19 April 2013 the applicant had an Irregular Maritime Arrival Entry Interview (“entry interview”).
On 18 August 2016 the applicant made an application for a Safe Have Enterprise Visa (“SHEV”). The basis of this application was set out in the applicant’s statutory declaration dated 15 October 2016.
The Applicant’s protection claims may be summarised as follows:
(a)The applicant is a citizen of Bangladesh, is a Sunni Muslim, and originates from the Jessore District in Bangladesh;
(b)He belongs to a prominent family which is of good standing in his village and is known to be financially well-off, including owning agricultural land;
(c)The applicant’s grandfather owned a large amount of land, which was then inherited by his father and other members of his family;
(d)Neither the applicant nor his family members support the ruling party, the Awami League (“AL”) and do not support any other political parties;
(e)On 25 February 2013 the applicant was targeted for extortion and was threatened that he would be killed if he did not pay the extortion amount. The applicant reported this to the police but claims no investigation took place. The applicant says that this attack was due to his political opinions and the perceived wealth of his family;
(f)A number of days after this incident the applicant was stopped again by the same people who made the previous threat. Again the applicant was threatened and was asked by the individuals why he went to the police to make a complaint. It was this that caused him to consult with his family, who determined that it was too dangerous for the applicant and that he had to leave Bangladesh;
(g)The people who targeted the applicant for extortion are connected with AL and with the local police. These individuals are not members of the AL, however are connected to the AL. Further, the AL uses individuals who are not members of the party for extortion to maintain a clear image;
(h)In 2015 the applicant’s father was a victim of extortion, where he was robbed whilst withdrawing money from the Bank. The people stole money from the applicant’s father along with some bank documents. This was reported to the police but no investigation took place; and
(i)The applicant claims to be in fear of being targeted again should he return to Bangladesh.
The delegate accepted that the applicant was not a supporter of the AL, and that he was politically non-aligned. The delegate also accepted that the applicant was from a financially well-off family, but did not accept that he had been targeted with extortion. The delegate was not satisfied that the applicant had a real chance of suffering serious harm should he be returned to Bangladesh.
On 3 May 2017, the delegate made a decision refusing the applicant’s SHEV application.
Immigration Assessment Authority Decision
On 15 May 2017, the matter was referred to the Authority for a review of the delegate’s decision. The applicant was represented by a migration agent during this process.
On 2 June 2017, the Authority received from the applicant a 14 page written submission dated 31 May 2017 (“Authority Submission”). The Authority Submission also attached a number of documents which the applicant claimed were not before the delegate. The Authority considered the Authority Submission and attached documents to be “new information” under s.473DD of the Act.
Relevantly for the purposes of the judicial review application, the Authority Submission included the following:
Political parties in Bangladesh also have links with terrorist organisations. These organizing (sic) in order to raise much needed finance for arms, propaganda and training may often resort to extortion, kidnapping and criminal gang like activities to raise funds. The recent rise of listed terrorist organisations and their presence in Bangladesh is alarming. The South Asian terrorism portal lists a few organisation (sic) but as this space develops constant (sic), there are many not listed as they have outside influence especially within the Deobandi movements.
The Purba Banglar Community Part (sic) (PBCP) could be one organisation which would operate in Jessore that could target the applicant for extortion.
(emphasis added)
The Authority’s reasons relevantly read:
3. On 2 June 2017 the applicant’s representative provided a submission to the IAA (dated 31 May 2017). Insofar as this engages in argument with the delegate’s decision I have had regard to it.
4. Additionally, the submission provided a number of documents and photographs… and also a number of reports… None of this information was before the delegate and it therefore amounts to new information… Additionally, it is submitted that banned terrorist groups like the Purba Bangla Communist Party (PBCP) could be operating in Jessore and could target the applicant for extortion. The applicant has never before claimed to fear terrorist groups like the PBCP and this claim is also new information…
6. The 2 June 2017 submission has submitted that all of the new information it has provided should be considered and that the applicant should not be punished for not providing this information to the delegate as the applicant was not aware of what documents he should have provided to support his claims aside from his identity documents and a general diary report the police about the extortion of his father on 28 May 2015. However, the applicant is well educated and I am not persuaded that the applicant would have considered that he was limited, in terms of the evidence he should provide, to his identity documents and a general diary report the police about the extortion of his father. Further, following the SHEV interview the applicant would have been plainly aware that the delegate had doubts about the credibility of his claims and the merit of his case and he cannot have been unaware of the need to substantiate his claims.
7. Further, the delegate provided the applicant with ample opportunity to submit any claims that he wished to make but the applicant never said anything about fearing terrorist groups like the PBCP and he has not satisfied me that he could not have provided this claim to the delegate before she made her decision. The applicant has never previously claimed to fear the PBCP or terrorists and I am not persuaded that the applicant has recently formed a fear of this kind on the basis of the vague reports of recent terrorist activity in Jessore which have been provided to the IAA (which include a 4 May 2017 report of a man wanted on a murder charge being killed by terrorists, a 5 May 2017 report which refers to terrorist plans to kill the Awami League and that man has been stabbed, and a 29 May 2017 report of the arrest in Jessore by police of man on terrorist charges). The applicant has not satisfied me that his claim to have a fear of this kind is credible personal information. The applicant has therefore not satisfied me that s.473DD(b) is met with regard his claim to fear terrorist groups like the PBCP. Further, given that I am not satisfied that this new information is credible, and given that there would not appear to be any exceptional circumstances of any other kind associated with this information, I am not satisfied that there are exceptional circumstances to justify considering this new information.
For reasons which it further explained, the Authority did not accept the applicant’s claims for protection. The Authority was not persuaded that the applicant was the victim of extortion or had his life threatened.
Additionally, the Authority did not accept that the applicant met the requirements of the definition of refugee in accordance with s.5H(1) of the Act. The Authority also determined that the applicant did not meet s.36(2)(a) of the Act nor was the Authority satisfied that the applicant was suffer “significant harm” should he be returned to Bangladesh in accordance with s.36(2A) of the Act.
On 12 December 2017, the Authority refused the applicant’s application for protection pursuant to s.36(2)(aa) of the Act.
Grounds of Judicial Review
The applicant filed an application for judicial review on 19 December 2017. On 23 March 2022, the applicant lodged an amended application (filed 29 March 2022), in respect of which leave was sought and granted at the hearing on 7 April 2022.
The applicant relies on one ground of judicial review, namely that the Authority fell into jurisdictional error by “adopting an erroneous construction of s.473DD” of the Act in that the Authority:
i.misconstrued 473D(b)(ii);
ii.made inaccurate factual statements;
iii.failed to consider new information in accordance with the law;
iv.failed to consider explanations and reasons advanced by the Applicant and adopted an unduly narrow construction of s.473DD of the Act.
In doing so, the applicant claims, the Authority constructively failed to exercise its jurisdiction under s.473DD leading to jurisdictional error. The sole ground of judicial review relied on the following particulars:
In the Applicant’s submission to the Authority on 2 June 2017 the Applicant’s Representative provided new information including:
a) He comes from a wealthy family as evident from the numerous and land holding titles enclosed with this submission. Holding numerous tracks of fertile agricultural land in Bangladesh and in South Asia is a sign of wealth and this was not considered by the decision maker. [CB 127]
b) Wealthy people are genuine targets for extortion in Bangladesh. [CB 127]
c) The review applicant not only fears losing his life but also his livelihood as terrorist organisations could do a land grab if extortion is not enough for them. [CB 128]
d) The Political parties in Bangladesh also have links with terrorist organisations and these organisations often resort to extortion and kidnapping in order to raise funds. [CB 129]
e) The Purba Banglar Community Party (PBCP) could be one organisation which operate in Jessore that could target the Applicant for extortion. [CB 129][1]
[1] Applicant’s amended application filed 29 March 2022.
The applicant’s outline of submission was likewise electronically lodged for filing on 23 March 2022. Those submissions were developed at hearing by the applicant’s counsel.
The application for judicial review is resisted by the first respondent, who filed an outline of submission on 31 March 2022, and made further oral submissions at hearing.
Relevant Legal Principles
There is but one discrete issue for determination in this application, and that is whether the Authority failed to lawfully construe and apply s.473DD of the Act thus falling into jurisdictional error.
Section 473DD of the Act governs the circumstances in which the Authority may consider new information put forward by a referred applicant. It provides:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
a. the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
b. the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
i.was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
ii.it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
It is not necessary to consider whether s.473DD applies unless the Authority is satisfied that the information or document is “new information” for the purposes of s.473DC(1). Whether information is “new information” is a matter to be determined by having regard to the legislative provisions. If the Authority finds that the material before it is “new information” then it must not consider that new information unless it is satisfied that the conditions in s.473DD are met.
In AUS17 v Minister for Immigration and Border Protection[2] the High Court held that the Authority must assess such new information:
… first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
[2] [2020] HCA 37 at [11]
DETERMINATION
Without any intent to be pejorative, the Court found it difficult to follow and understand the applicant’s case, which seemed to waver and change. The written submissions did not seem to have a direct correlation to the way the jurisdictional error was articulated in the amended application. During oral submissions, the applicant submitted that the Authority made the kind of error identified in CSR16 v Minister for Immigration and Border Protection[3], a matter which had not been previously specifically raised, either in the amended application or in the written submissions, but was said to fall within the “misconstrued 473D(b)(ii)” argument. The applicant also submitted that firstly the new information was a new claim, but then that the new information was not a fresh claim but rather an extension of the applicant’s claim. Doing the best that it can, the Court has sought to address the applicant’s arguments as it understands them.
[3] [2018] FCA 474
The PBCP new information
When read against the framework and background of the Authority Submission, the new information about the PBCP was put before the Authority in the context of the applicant’s claim made in the Authority Submission that he was apolitical thus attracting negative attention from major and minor political parties, that he came from a wealthy family and that wealthy people are genuine targets for extortion, and that the gangs which extort are linked to the police and other security agencies. The applicant claimed in the Authority Submissions that he feared not only for his life, but also his livelihood as “terrorist organisations” could do a land grab if extortion is not enough.[4] The inactivity of the police to help vulnerable citizens was said to be a major concern to the applicant. In that context, the Authority Submission went on to say “the applicant raised some of the above highlighted issues during his interview as a reason for his fear from the Awami who now control the police 100%.”[5]
[4] CB128
[5] CB128 emphasis added
The applicant further submitted in the Authority Submissions that he was not an economic refugee, and that he left Bangladesh “because of his actual and imputed political opinion. It is these cumulative claims that makes his grounds for persecution in Bangladesh by the ruling Awami party and its members and supporters at grass roots level. Criminal activities and political oppression go hand in hand together in Bangladesh…”[6]
[6] CB129
The Authority Submissions then went on to say that political parties in Bangladesh also have links with “terrorist organisations”, and that the PBCP “could be one organisation” that “could target” the applicant for extortion. The Authority Submission then went on to mention other terrorist groups which came into existence after the AL came into power and which are still active as they enjoy protection from other parties.
In considering the Authority Submission, the Authority (as noted earlier) determined that “The applicant has never before claimed to fear terrorist groups like the PBCP and this claim is also new information…”
The outline of submission to this Court lodged for filing by the applicant on 23 March 2022, set out the applicant’s protection claims as follows:
The Applicant claimed that (i) his family had a good standing in his village and they were known to be financially stable and well-off; (ii) his grandfather owned a lot of land; (iii) himself and his family members do not support the ruling party, the Awami Leage (“AL”); (iv) he was targeted for extortion because of his political opinion (non-support of Awami-League and non-alliance with any political party) and the perceived wealth of his family; (v) the people who targeted him for extortion are connected with the Awami League – they are supporters of AL but they are not members of AL. AL uses non-members for extortion to maintain a clear image.
It is clear from the applicant’s own submission to this Court, that his protection claims were centred on extortion by AL and its proxies.
Applicant’s arguments on judicial review
The argument that the Authority adopted an erroneous construction s.473DD in that it made inaccurate factual statements, namely that the applicant had never previously claimed fear of terrorists, is rejected. The reference to “village terrorism” during the entry interview was made in the context of “the political party doing the terrorism” which the political party was then named as the Awamilic. The reading of the answers provided by the applicant during the entry interview contended for by the applicant are an artificial reconstruction of the evidence given by the applicant. His reference to village terrorism (being blackmailed by village terrorists), cannot be separated from his references to being blackmailed because of his lack of involvement with the AL.
The Authority’s finding that the applicant had never previously claimed fear of terrorists (like the PBCP) was accurate and correct. All of the applicant’s protection claims, including during his entry interview[7], were tied to the AL, whether because of his lack of political affiliation and/or his and his family’s wealth. The applicant’s submissions in this regard are rejected. The applicant did not ever claim a fear of extortion from terrorists per se, but rather fear of extortion from terrorists (or terrorist groups) associated or affiliated with AL.
[7] Where he claimed that it was “village terrorism” blackmailing him for money but that “there is the political party doing the terrorism, and anyone who is not involving with their party they charge the blackmail” and where he identified the AL as the relevant political party.
The Authority did not find that the applicant could not have provided this claim to the delegate before her decision or that it was credible personal information. The applicant takes issue with the finding by the authority that the new information was not credible personal information, that is, he takes issue with the finding that he did not meet s.473DD(b)(ii). No issue is taken by the applicant about the finding that the new information did not meet s.473DD(b)(i).
The argument that the Authority adopted an erroneous construction s.473DD in that misconstrued s.473D(b)(ii) is rejected. The Court understands that this was the argument that the Authority made an error of the kind identified in CSR16, that is, that the Authority failed to assess the information as being capable of being believed.
The Authority’s reasons explain that the applicant had never previously claimed to fear the PBCP or terrorists and the Authority was not persuaded that the applicant had recently formed a fear of this kind on the basis of the vague reports. In other words, the Authority had formed the view that the information was not open to be or capable of being accepted by the Authority as truthful for the reasons it explained.
The argument that the Authority adopted an erroneous construction s.473DD in that it failed to consider explanations and reasons advanced by the Applicant and adopted an unduly narrow construction of s.473DD of the Act is rejected. The applicant’s written submissions refer to this as reasons advanced by the applicant in support of his claim that he would face extortion from the terrorist organisation PBCP as a wealthy landowner were exceptional circumstances to justify considering the PBCP information.
To suggest, as the applicant does, that the Authority failed to consider the link between the applicant’s previous claims and the PBCP information, for the purposes of considering whether exceptional circumstances existed pursuant to s.473DD is to not only conflate the claims (the protection claims made by the applicant as referred to in paragraph [5] above and the new claim about the PBCP made in the Authority Submission) but is also to disregard that the Authority never had to consider whether exceptional circumstances existed because the information fell short of the s.473DD(b) hurdle.
When viewed in the context of the applicant’s actual protection claims, the information about the PBCP was not evidence of the type of extortion the applicant claimed fear from. It was not an extension of the claim made by the applicant and it was not an example of the type of activity the applicant claimed he feared. The PBCP information did not indicate in any way that the PBCP’s illegal activities of murder, robbery, extortion, land grabbing, and abduction had any political affiliations to the AL[8], but rather that it was targeting landowners for extortion for its own economic purposes and that it was encouraged by “the Opposition” (to the AL) to do so. The Authority did not misconstrue the purpose of the information. It was new information being a new claim, which it decided was not credible personal information.
[8] The other terrorist groups mentioned in the Authority Submission were said to enjoy protection from political parties other than the AL. No claim was made, or said to have been made, in relation to those other terrorist groups.
For similar reasons, the argument that the Authority adopted an erroneous construction s473DD in that it failed to consider new information in accordance with the law is rejected.
CONCLUSION
The applicant has not established jurisdictional error on behalf of the Authority.
The application for judicial review is dismissed with costs.
42 I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 10 August 2022
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