FWR18 v Minister for Home Affairs
[2019] FCCA 3448
•15 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FWR18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3448 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – Application in a Case for reinstatement – application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Home Affairs to refuse to grant to the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa – applicant contends he was not able to attend final hearing date because he was “not aware of that day” – evidence on the Court file and of the Minister indicates the applicant was properly informed of final hearing date – applicant raises proposed substantive Grounds that Immigration Assessment Authority failed to apply the correct test pursuant s.36(2)(aa) of the Migration Act 1958 (Cth) and that he was not afforded procedural fairness – Immigration Assessment Authority can rely on anterior factual findings in relation to an assessment under the Refugees Convention criterion in its consideration of the complementary protection criterion – not necessary for Immigration Assessment Authority to repeat factual findings under the complementary protection criterion – correct tests applied by the Immigration Assessment Authority – no procedural unfairness established by the applicant – Application in a Case for reinstatement dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 46A, 473CA, 473DA, 473DD Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: AEX15 v Minister for Immigration and Border Protection [2017] FCA 821 AWA15 v Minister for Immigration [2018] FCA 604 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 |
| Applicant: | FWR18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3151 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 15 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms K. Morris |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application in a Case filed on 5 November 2019 is dismissed.
The Applicant pay the First Respondent’s costs of the Application in a Case in the sum of $1,000.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 35.13(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 11 December 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3151 of 2018
| FWR18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
I am hearing an Application in a Case filed by the Applicant on 5 November 2019 supported by an affidavit by the Applicant sworn on that date. The Application in a Case seeks reinstatement of his substantive Amended Application which was dismissed at its scheduled final hearing on 25 October 2019, when he did not appear. I find that he was advised of that hearing by an email from my Chambers dated 10 April 2019 to his email address. That email advised him that his matter had been set down for final hearing on 25 October 2019 at 11:00am in Court 9.2 at 80 William Street, Sydney.
The solicitor for the First Respondent, the Minister for Home Affairs (Minister), appeared on that occasion and the Applicant did not and in the result the substantive Amended Application was dismissed for want of appearance under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules).
I note that under r.6.01(6) of the Rules if a party is not represented by a lawyer, as was the case with the Applicant here, but provided an email address, as he did, that party thereby agreed to receive documents at the email address. The evidence led by the Minister in the affidavit of Ms Kathleen Anne Morris establishes that the Applicant in an email dated 18 October 2019 was told by Clayton Utz that his final hearing was to be heard on 25 October 2019.
On 28 October 2019 a telephone conversation took place between Ms Morris and the Applicant shortly after she had sent him an email advising him that on 25 October 2019 his substantive Amended Application had been dismissed. The file note of Ms Morris establishes that the conversation was in English and that is consistent with the Applicant’s statement in his Safe Haven Enterprise (Class XE) (Subclass 790) visa (Protection visa) application form that he spoke and read the English language to a basic level.
In that conversation the Applicant asserted that he had been “told” that his hearing was on 25 November 2019 and not on 25 October 2019. In his affidavit in support of his Application in a Case, he says that he was unable to attend the hearing on 25 October 2019 as he “…was not aware of that my application has been listed for final hearing on that day”.
In my view the Applicant knew that his final hearing was on 25 October 2019 and he has not given any reasonable, persuasive or plausible explanation for why he did not appear on that occasion. However, it is necessary for me to consider whether or not, to put it shortly, he has a reasonable argument for asserting that the decision of the Immigration Assessment Authority (IAA), of which he seeks judicial review, is affected by jurisdictional error and I now turn to that issue, within the context of the application for reinstatement.
Relevant Background
The Applicant in this proceeding is a male citizen of Bangladesh aged 32 years, having been born on 31 December 1986.
By Amended Application filed in this Court on 20 March 2019 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 1 November 2018 under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the Minister, dated 17 May 2018 refusing to grant to him the Protection visa.
The Applicant is a Sunni Muslim of Bengali ethnicity who arrived in Australia on 2 January 2013 as an unauthorised maritime arrival. He then attended an Irregular Maritime Arrival Interview on 20 January 2013 in Darwin.
On 9 May 2016 the Minister, under s.46A(2) of the Act, lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making his application for the Protection visa on 5 October 2016.
The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:
a)who entered Australia after 13 August 2012 but before 1 January 2014;
b)who was not taken to a regional processing country;
c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and
d)who made, as he did, a valid application for the Protection visa.
Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the decision of the Delegate refusing to grant to the Applicant the Protection visa in this case.
I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 per Griffiths J at [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ.
Relevant Law and Criteria Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Claims for Protection
The Applicant’s claims for protection were set out in his Statement dated 1 October 2016 (Statement) and, in particular, were made at [21] – [28] of that Statement, as follows:
[21] The national election in Bangladesh was held on 29 December 2008. As political campaigning intensified, my political activism increased also. I openly campaigned for and supported the BNP. The Awami League won the election.
[22] On the evening of the election, as the results were being counted and it appeared that the Awami League would win the election, members of the Awami League started targeting members of the opposition party, myself included. They revealed their true violence and aggression.
[23] Within a few days of the election, in the first few weeks of January 2009, I went to the market. I was alone, but I was mentally prepared for being targeted given that my party had lost the election.
[24] There were 5 Awami League supporters who saw me. They approached me and said words to the effect of “we asked you to join our party and you refused. You are now the loser. This is how the BNP should really be treated”. They proceeded to beat me at the market, all 5 of them. I managed to get away, and returned home to tell my family of the incident.
[25] My parents advised me not to leave my house because my personal, physical safety was paramount.
[26] On the evening of 25 January 2009, I was sleeping in my home with my family. 10 or 11 Awami League members approached my house and started screaming from the outside, “where is FWR18? We want FWR18”. My parents lied that I was not in the house, but they knocked down the front door and searched for me.
[27] I was hiding under the bed. When they found me, I was blind folded, and my hands were bound. I was taken to a vehicle and drive to a dark house. There, I was severely beaten and tortured.
[28] I thought I was going to die, so I started begging for mercy. I begged for my life. I was told that the only way I would be released was if I provided my captors with money. They demanded 200,000 taka. I promised that I would arrange this money for them, but they compelled me to call my father to hand over the money prior to my release.
Further, by submissions dated 27 April 2018 the Applicant’s solicitor advanced, in short, with respect to both the Refugees Convention criterion and the complementary protection criterion, as follows:
Mr FWR18 left Bangladesh after facing intimidation and physical violence from members of the AL. He was targeted by members of the AL because of his political beliefs and affiliation with the BNP. From the time that he completed schooling our client was involved with the BNP by handing out flyers and putting up posters. He attended meetings and participated in processions, and encouraged others in the community to join the BNP.
Our client initially experienced verbal harassment from the AL who asked him to join their party instead of the BNP. After the December 2008 elections, in which our client openly campaigned in support of the BNP, the aggression from AL members intensified. In January 2009 our client was beaten by five members of the AL as retribution for failing to join their party and for supporting the BNP instead. A few weeks later a group of AL members approached Mr FWR18’s home. They forced their way into the home and assaulted his family in the process. They then abducted him. He was taken to a dark dwelling where he was beaten and tortured. Our client was only released after his father paid a ransom of 200,000 taka. He then sought medical treatment.
After Mr FWR18 had physically recovered from the kidnapping incident he was involved in another incident [at] the local bazaar. Our client saw one of the men who had tortured him and kidnapped him. The man then provoked him, and they began to fight. During this fight our client cut the other man’s arm with a blade. When he returned home his family advised him that it was no longer safe to stay in Faridpur as he had injured a member of the AL and they would collectively seek retribution against him. Mr FWR18 and his brother then departed from their home and travelled to Dhaka.
Whilst our client was living in Dhaka he discovered that the incident in the bazaar had been reported to the local police. A police report had been issued and a charge sheet given to his family. Our client did not ever respond to the charge sheet or report to the Bangladeshi authorities. He affirms that the charges were trumped up charges and laid against him using misinformation. Finally, after some time in Dhaka, our client made arrangements with an agent to obtain a passport and documentation to travel to Malaysia.
Decision of Delegate
In the result the Delegate rejected the claims of the Applicant and, in particular, that:
·he was active in the BNP during the lead up to and/or at the December 2008 elections in Bangladesh;
·he was kidnapped in 2008 by the AL;
·he was in a fight in a bazaar;
·he faced criminal proceedings at the time he exited Bangladesh;
·he had a political opinion in support of the BNP; and
·the AL had been going to his family’s house in Bangladesh looking for him.
The Delegate was not satisfied that the Applicant was a refugee and found that he did not satisfy the Refugees Convention criterion or the complementary protection criterion and he refused to grant the Protection visa to the Applicant.
IAA Decision
By letter dated 24 May 2018 the Minister, pursuant to s.473CA of the Act, referred to the IAA the Delegate’s refusal to grant the Protection visa to the Applicant. By letter dated 9 June 2018 (lodged with the IAA on 12 June 2018) the Applicant’s solicitor sent to the IAA a submission (solicitor’s submissions) which included a reference to the most recent DFAT Country Information Report on Bangladesh dated 2 February 2018 (DFAT Report), which included the following:
We refer you to a recent remittal decision from the IAA, IAA1601512. The applicant in the matter claimed that his father and he had been BNP supporters. The reviewer accepted that they supported the BNP at a low level, and voted for them, then accepted that the applicant’s parents were killed during the election because they were BNP supporters.
At [4] of its Decision Record the IAA noted that it had considered the solicitor’s submissions and the DFAT Report cited therein.
At [5] of its Decision Record the IAA referred to the reference in the solicitor’s submissions to another IAA decision in a different case involving Bangladesh and expressed the view, in my opinion without jurisdictional error, that this reference did not satisfy s.473DD(b) of the Act on the ground that the different IAA decision had not been identified in the solicitor’s submissions, nor had the claims that were considered in that decision or the date of the decision and was new information which had not been before the Minister.
Neither the Administrative Appeals Tribunal (Tribunal) or the IAA operate under any system of precedent. In Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 37, the Tribunal refused to grant the applicant a Protection visa, although the applicant’s sister had been granted a Protection visa by a differently constituted Tribunal some ten months earlier. The Full Federal Court rejected an argument that the Tribunal had improperly failed to adopt an approach consistent with the facts found by the Tribunal which had heard the applicant’s sister’s application. At 41 [15] the Full Court of the Federal Court comprised of Burchett, Goldberg and Finkelstein JJ said:
[15] There is no merit in the submission that the tribunal was obliged to adopt an approach to fact finding on the objective aspects of the circumstances of the appellant's case consistent with the fact finding of the tribunal which determined the appellant's sister's application in December 1998. Although consistency may be an important element of good administrative decision-making each case must be considered in the context of its individual circumstances…
In Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353 Moore J at 359 – 360 [21] said:
[21] There is nothing in the Act to suggest that the Tribunal is bound in some way by conclusions reached in previous decisions. Indeed the Act, and in particular s 420, requires that the Tribunal must act in accordance with the merits of the case. As the Full Court explained in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 the nature of the Tribunal's task in reviewing a decision requires a consideration of all available evidence. In performing that task, the Tribunal cannot, in principle, be constrained by what it had decided in earlier cases.
In NABW v Minister for Immigration and Multicultural Affairs [2002] FCA 464 at [13] Sackville J said (omitting citations):
[13] So far as the applicant's complaint relating to the RRT's failure to refer to its earlier decisions is concerned, the general principle is that the RRT is not bound to refer to such decisions merely because they raise similar issues to those presented by the particular application for review. The question for determination by the RRT is whether it is satisfied on the materials before it that the applicant has a well-founded fear of persecution if returned to his or her country of nationality... The RRT is not bound by conclusions reached in previous decisions and is entitled to disregard those decisions if it considers them to be irrelevant...
From [11] – [27] of its Decision Record the IAA analysed and considered the Applicant’s claims for protection. It was prepared to accept that he had been a “low level grass roots BNP supporter”. It did not accept that he had taken “a prominent role in demonstrations or that he was singled out in any way by the Awami League”: see [20]. Further, the IAA did not accept that the Applicant had been “beaten by AL members in early January 2009 or kidnapped by AL members later in the same month”: see [21].
At [23] of its Decision Record the IAA noted that it had regard to independent country information, including the DFAT Report, which led it to its finding expressed in the last sentence of [23], as follows:
[23] …On the information before me I am not satisfied there is a real chance that the applicant will suffer harm from AL members, or criminal gangs associated with the AL, because of the low level support he gave to the BNP during an election campaign around a decade ago.
In the result, the IAA was not satisfied that there was a real chance that the Applicant would suffer harm if he returned to Bangladesh for the purposes of the Refugees Convention criterion or that there was a real risk that he would suffer significant harm under the complementary protection criterion.
Accordingly, the IAA affirmed the Delegate’s decision not to grant the Protection visa to the Applicant.
Grounds of Attack on IAA Decision in this Court
The Applicant relied upon the following Amended Grounds:
1. The Immigration Assessment Authority has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars:
In dealing with the Applicant’s clams under Section 36(2)(aa) of the Migration Act, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.
2. The IAA denied procedural fairness to the applicant.
Consideration
Ground 1
At [7] – [8] and [29] – [30] of its Decision Record the IAA correctly set out the statutory criteria for the Refugees Convention criterion and the complementary protection criterion. The IAA also attached the statutory criteria in an appendix to its Decision Record under the heading of “Applicable law”.
In my view, it is clear from the face of the Decision Record that the IAA had regard to the correct statutory criteria when it applied the “real chance” test and the “real risk” test and that the IAA separately considered those tests. Further, the IAA properly undertook the task of “making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found and then applying those facts and inferences to an assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned”: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294.
The IAA properly considered the complementary protection criterion at [31] of its Decision Record and found in terms that it was not satisfied that the Applicant would face a “real risk of significant harm” for the purposes of the complementary protection criterion. In my view, the IAA did not fail to apply the correct test for the complementary protection criterion and it was also correct to note that the “real risk” test involved the application of the same standard as “real chance”: see DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 at 652 [36] per Kenny, Kerr and Perry JJ.
It was open to the IAA to rely on its anterior factual findings in relation to an assessment under the Refugees Convention criterion in its consideration of the complementary protection criterion and it was not necessary for the IAA to repeat those factual findings under the rubric of the complementary protection criterion: see CBN17 v Minister for Immigration and Border Protection [2018] FCA 788 at [31] – [32] per Murphy J; AEX15 vMinister for Immigration and Border Protection [2017] FCA 821 at [27] per O’Callaghan J; MZXYS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] per Marshall J.
Accordingly, in my view Ground 1 would not be made out by the Applicant, even if I gave him leave to reinstate his substantive Amended Application and the matter went to a separate final hearing.
Ground 2
This Ground is wholly generalised and unparticularised and formulaic in making an assertion of a denial of “procedural fairness to the applicant”. No written submissions were put on by the Applicant and at the hearing he made no oral submission in relation to any type of procedural unfairness. I further note that the IAA’s obligations in connection with procedural fairness are circumscribed by s.473DA(1) of the Act, of which the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [34] said:
[34] The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at 491 [67] and in Minister for Immigration and Border Protection v DZU16 (2018) FCR 526 at 552 – 553 [99]. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the “lens” through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.
In my view, the Applicant has not established on any basis that procedural fairness was denied to him by the IAA and Ground 2 would not be made out if he obtained reinstatement.
Conclusion
In my view, the Applicant has no reasonable prospects for success, if his case was reinstated, of establishing before a Court the Grounds that he has asserted in his Amended Application and there is thus no utility or purpose in reinstatement. I have had regard to the considerations stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] and to the recent decision of the Full Court of the Federal Court of Australia in FBS18 v Minister for Home Affairs [2019] FCAFC 196 comprised of Flick, Robertson and Lee JJ in this connection of a reinstatement application.
Although the Applicant has not established or shown any reasonable basis for not appearing at the hearing on 25 October 2019, I would have been minded to grant reinstatement if his substantive Grounds had any prospects for success, but they do not and accordingly, in these circumstances I dismiss the Application in a Case filed on 5 November 2019 because it is not in the interests of justice to reinstate his Amended Application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 27 November 2019
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