FEDERAL COURT OF AUSTRALIA

BDE17 v Minister for Immigration and Border Protection [2019] FCA 338

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of the appeal as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    This is an appeal from orders made by the Federal Circuit Court on 15 August 2018: BDE17 v Minister for Immigration [2018] FCCA 2476. That Court dismissed the Appellant’s application for writs of certiorari and mandamus directed to the Immigration Assessment Authority (‘the Authority’). The Appellant is from Bangladesh and applied for a protection visa on 30 November 2016 on the basis that he feared harm as a member of the Bangladesh National Party (‘BNP’) at the hands of the ruling party, the Awami League. The Minister’s delegate did not accept this claim and consequently refused the Appellant’s application on 13 January 2017. Ordinarily review of a protection visa decision would proceed in the Administrative Appeals Tribunal. However, because the Appellant arrived in Australia at the port of Christmas Island without a visa, he is an unauthorised maritime arrival and his case was subject instead to automatic review by the Authority under the provisions of Pt 7AA of the Migration Act 1958 (Cth) (‘the Act’).

2    In the Federal Circuit Court the Appellant was unrepresented. Before that Court he filed an amended application which the Court treated as disclosing seven grounds of review. The first was that the Authority mistook and misconstrued the facts. Whilst accepting that this might, in an appropriate circumstance, disclose a jurisdictional error, in this case the Court below concluded that this was not so and the argument merely sought to argue the merits of the Authority’s decision. I see no error in the Court’s treatment of the issue. The particulars to the ground do not allege that facts were misunderstood or misconstrued. For example, the second particular contains the complaint that the Appellant had stressed at his protection visa application interview that he was a member of the BNP. The Court below was correct to conclude that this did not disclose a viable ground of review.

3    The second ground was threefold: the Authority had failed to invite him to a hearing; had failed to ask him for additional information; and had denied him procedural fairness by making its decision on limited information. None of these grounds is viable. The Authority was not obliged to invite the Appellant to a hearing. It is obliged to conduct reviews on the papers: s 473DB(1) of the Act. Although the Authority may, in exceptional circumstances (s 473DD), seek new information under s 473DC it has no duty to do so. This Court has held that, in certain circumstances, it may be legally unreasonable for the Authority not to consider exercising this power: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (‘CRY16’) at 494 [82] per Robertson, Murphy and Kerr JJ. In that case, it was reasonable to suppose that the applicant had information about his personal circumstances as they appertained to the relocation issue on the basis of which the Authority (but not the delegate) had decided to deny the applicant a protection visa. It was legally unreasonable for the Authority in that circumstance not to consider whether to exercise the power in s 473DC. There is nothing in this case, however, to indicate that the Appellant had information of that kind so the reasoning in CRY16 is of no assistance.

4    The contention that the Authority denied the Appellant procedural fairness because it conducted the hearing on limited information cannot survive an encounter with s 473DA and its instruction that Div 3 of Pt 7AA of the Act is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. There is nothing in Div 3 which allows a complaint to be made that a hearing was conducted on less than full information. Indeed, to the contrary, the clear implication from s 473DC is that where there is relevant new information it will not be considered by the Authority unless the circumstances are exceptional. One can hardly say therefore that Div 3 can be offended unless the Authority considers all relevant information. It is tolerably plain that the structure of Pt 7AA is designed to bring about the opposite outcome. In that circumstance, the Court below was correct to reject this second ground.

5    The third ground unfortunately does not make any sense. The Court below thought that it was concerned with the right of the Appellant under the Authority’s Practice Direction for Applicants, Representatives and Authorised Recipients, issued under s 473FB of the Act, to make a submission. The Court thought that it disclosed no known ground of review. I agree.

6    The fourth ground was as follows:

The issue is that the IAA used which section of the Migration Act related with using information for making decision. It was 473 CB or section 473 FB of the Migration Act? The applicant claims that the IAA made a jurisdictional error in the name of a mechanism of limited review and when it failed to apply the division 3 of Part 7AA of the Migration Act.

7    This was accompanied by particulars which, when taken together, constitute a complaint that the process of automatic review without a hearing was procedurally unfair. The Court below did not think that this disclosed a ground of review. The process of automatic review without a hearing is what Pt 7AA provides for: see s 473CA (mandatory referral by Minister of each delegate’s decision to the Authority) and s 473DB (review to be conducted on the papers). The Appellant’s point is really that this is an unsound system of review. Such a contention does not, however, disclose a valid ground of review.

8    The fifth ground alleged that the Department of Immigration and Border Protection (‘the Department’) had acted on old or irrelevant information. This submission can go nowhere, however, because the ultimate decision in question here, and under review in the Court below, is not that of the Departmental delegate but rather the Authority. The Court below rejected the fifth ground on this basis and was correct so to do.

9    The particulars to the fifth ground also contained some allegations about the Authority which appeared to be separate from the ground itself. Specifically:

(a)    the Authority did not consider the difficulties which a refugee who arrives by boat might face; and

(b)    the Authority made its decision based only on the Appellant’s first interview when that interview had not been not been conducted judicially or in a fashion which was fair or free. This was because during the interview the interpreter had overlooked the Appellant’s concern that he was not following what the interviewer said and did not pass this on to the interviewer. More generally, the interpreter did not tell the interviewer the matters which the Appellant wanted him to.

10    I do not think that (a) discloses a ground of review. I am prepared to assume that the Authority could have considered that matter if it chose but, even so, it was not bound to do so. Consequently, any failure on its part to do so has no legal significance.

11    Proposition (b) is more problematic. It is common for the Authority to reason towards the conclusion that an applicant is not creditworthy by means of an examination of inconsistencies between the applicant’s initial interview and subsequent statements made by an applicant at further interviews or in written statements lodged in support of a protection visa application. However, in this case the delegate had already reasoned in the same fashion and the Appellant was given an opportunity by the Authority to make submissions about the delegate’s decision by a letter dated 19 January 2017. Thus, even disregarding s 473DA, I do not think that the Appellant has been denied procedural fairness on this topic. The Appellant has had an opportunity to comment on whatever defects existed in the initial interview. I do not think, in any event, that the Appellant has established by evidence that there were any defects in the interview.

12    Even assuming that he had, I do not think it would go anywhere. The entry interview is not part of the review carried out by the Authority but its record is merely a piece of evidence considered by the Authority. The current situation therefore is not like those cases where Tribunal hearings have not been adequately translated or where an applicant has been suffering from some disability at the hearing. Cases such as Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575, SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106 and Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 are not apposite.

13    The sixth ground was that the Appellant was denied procedural fairness when he was forced to continue the initial interview when he had no desire to do so. However, as I have already noted, the Appellant had an opportunity to make submissions to the Authority about the use of the initial interview after the delegate had relied upon the inconsistencies it apparently threw up. There cannot have been, therefore, any denial of procedural fairness arising from what occurred at the interview.

14    This ground was also accompanied by particulars. The first of these is essentially the same as the sixth ground itself and it is not necessary to say anything further about it. The second particular was that what the Appellant had submitted to the delegate was true and that it was unreasonable for the Authority to come to the view that all documents coming out of Bangladesh were bogus. I do not think that the argument that he had told the truth to the delegate can carry matters very far. It was within the jurisdiction of the delegate (and thereafter the Authority) to decide on issues of truth and credibility (subject to concepts of unreasonableness and irrationality). The suggestion that it was unreasonable for the Authority to have concluded that all documents emanating from Bangladesh were bogus is easier to fit into the framework of judicial review. However, the Authority did not make such a finding. The only document which the Authority doubted was a letter dated 2 September 2015 signed by ‘Milon, President, Haridrapota’ which confirmed that the Appellant was an active member of the executive committee of the BNP in Jhikargacha Municipality. The Authority dealt with the letter as follows:

The applicant had never claimed to be on the Executive Committee and secondly at his PV interview he said that Milon was the union leader for Shamkarpur. I give little weight to this document as support of the applicant’s claims. In fact, given the discrepancies, it casts further doubt as to the applicant’s overall credibility.

15    Accordingly, the factual contention upon which this particular is premised does not arise. For completeness, I do not think that the Authority’s reasons for discounting the letter can be said to be irrational or unreasonable. In that circumstance, I agree with the Federal Circuit Court that the sixth ground does not disclose any viable grounds of review.

16    The seventh ground was an allegation that the reasons of the Department were confused and that the Department had not applied the test for persecution in accordance with the Act and the complementary protection provisions in s 36(2)(aa). As to confusion, as I have already explained, the reasons of the Department are not directly relevant to the issues which arise in the Appellant’s judicial review proceeding. The same observation may be made about the complementary protection allegation. Consequently, this ground cannot go anywhere.

17    As with the other grounds, the seventh ground was also accompanied by particulars. The first of these was a contention that he was entitled to complementary protection because of his membership of a particular social group viz being a returnee from a Western country. However, this is legally incorrect. The fact that one might be a member of a particular social group is relevant to the grant of a protection visa insofar as the Convention and Protocol Relating to the Status of Refugees is concerned. However, it is irrelevant on the issue of complementary protection in s 36(2)(aa) which is driven, instead, by identification of sufficiently serious risks of harm upon being returned from Australia to the receiving country and is unconnected to membership of any particular social group. Consequently, nothing flows from this particular. For completeness, it should be noted that the Authority dealt with this issue at [31]-[36].

18    The second particular was, in essence, that if he were returned home he would be tortured or killed by the Awami League. However, this matter was dealt with by the Authority at [23] and [28]. In any event, this contention cannot lead to an inference that there has been a jurisdictional error.

19    The third particular was another complaint that the Department had failed to apply the correct test for assessing whether there was a well-founded fear of persecution. However, as I have explained, what the Department did is irrelevant for present purposes.

20    The fourth particular was a complaint that the Department had failed to give reasons for not accepting his complementary protection claim. Again, what the Department did is no longer relevant. The issue is what the Authority has done.

21    The fifth particular was another set of allegations about the manner in which his initial interview had been conducted. For the reasons I have already given above at [8] concerning the fifth ground, this does not go anywhere.

22    The sixth particular alleged that the Department had failed to assess the question of whether there were substantial grounds on all of the material before the decision maker. Again, what occurred before the Department is now immaterial.

23    The seventh particular alleged that the Department had approached its task with limited information and a preoccupied mind. Again, what the Department did does not matter.

24    I was unable to understand the eighth particular which I do not, in consequence, accept discloses a viable ground of review.

25    In those circumstances none of the grounds of review proposed in the notice of appeal provide any basis for reviewing the decision of the Authority. This was the Federal Circuit Court’s view. Having assessed all of the grounds myself, that Court’s conclusion that the claim for judicial review had to be dismissed was plainly correct. Even if error were otherwise shown in that Court’s decision (and I detect none), its decision was correct.

26    The appeal should be dismissed with costs.

Associate:

Dated:    15 March 2019