FEDERAL COURT OF AUSTRALIA

CXZ16 v Minister for Immigration and Border Protection [2017] FCA 931

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority, affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).

2    The appellant, born on 2 March 1987, is a male citizen of Bangladesh and of Bengali ethnicity. He arrived in Australia on 21 February 2013 without a visa and was subsequently detained in an immigration centre pursuant to s 189(3) of the Migration Act 1958 (Cth).

3    The appellant applied for a SHEV on 23 April 2016. In his application, he claimed to fear harm from supporters of the Awami League party and the Awami-led government as a result of his political opinion as an active member of the Bangladesh National Party (BNP) in the Titash district. The appellant claimed he was involved in organising BNP political activities and election campaigns for a local Member of Parliament for the Comilla District.

4    The appellant said that during the time of the caretaker government, BNP supporters were threatened and harassed by Awami supporters, and he had been beaten by Awami League supporters on five or six occasions. The appellant claimed the abuse and harassment worsened after the Awami League came into power in 2008.

5    The appellant said that he moved to Homna for his safety, but continued to be beaten and harassed by members and supporters of the Awami League. He claimed the Awami League regularly harassed BNP supporters in all areas of Bangladesh because they wanted to establish a one party system in the country and control power. He said he then moved to Dhaka in 2010 to avoid the mistreatment he received in Homna, but continued to be threatened as he was involved with the BNP in Dhaka.

6    The appellant claimed he had been falsely accused and charged with being involved in a bombing incident that occurred during a BNP meeting on 10 October 2012. He said after the bombing incident, the government filed a police case against many BNP supporters, even though they were the victims of these attacks. He said he believed that the Awami League were behind the false accusations.

7    After this incident, the appellant said, he fled and went into hiding. He claimed Awami League thugs threatened and harassed his family, and damaged their property when they could not find him.

8    The appellant added that, since coming to Australia, the Awami League has come to his house and threatened his mother, repeating that they would kill him if they found him.

9    The appellant claimed to fear harm from the Awami League government and supporters on the basis that he has experienced torture, false accusations and death threats from the Awami League. He also claimed to fear harm from the police on the basis of the false case against him, stating the police will torture him for a false confession and he will be sentenced to death. He said the Awami government, Awami supporters and police are present and powerful throughout Bangladesh and there is nowhere he could go to be safe from them.

10    The appellant’s application for a protection visa was refused by a delegate of the Minister on 15 July 2016. As the delegate’s decision was a fast track reviewable decision within the meaning of s 473BB of the Act, the decision was referred to the Authority pursuant to s 473CA of the Act. On 2 September 2016, the Authority affirmed the delegate’s decision not to grant the appellant a SHEV.

11    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 22 February 2017, the primary judge held that the Tribunal’s decision was not affected by jurisdictional error and dismissed the appellant’s application. See CXZ16 v Minister for Immigration & Anor [2017] FCCA 264.

12    The appellant now appeals from the decision of the Federal Circuit Court by a notice of appeal filed 22 March 2017.

delegate’s decision

13    In addition to the appellant’s written claims in support of his SHEV application, the delegate noted the appellant also feared being harmed because of a departmental data breach in February 2014 (2014 data breach).

14    The delegate also considered that it was necessary to determine the risk of harm facing the appellant upon returning to Bangladesh, even though the appellant did not raise the claim of being mistreated as a failed asylum seeker in his application or protection visa interview.

15    The appellant attended an interview with the delegate on 28 April 2016. At the interview, the delegate put to the appellant that he had provided inconsistent information to the Department of Immigration and Border Protection. The delegate explained that none of the protection claims presented in his protection visa application or discussed in the interview was raised at his entry interview on 2 March 2013, including his claimed involvement in politics, and the delegate did not accept that he was involved with the BNP.

16    The appellant responded that his journey to Australia was difficult, that he was required to attend an interview as soon as he arrived, that his mind was not functioning properly as a result of not eating during his boat journey and being detained for a long period, and that he had difficulty understanding the interpreter during the entry interview. The appellant’s representative, in post-interview submissions, submitted that the interpreter was of Rohingya ethnicity and spoke a different Bengali dialect.

17    The delegate put to the appellant that he did not consider him to be a credible witness as there was difficulty obtaining information and detail from him. The appellant’s representative said consideration should be given to the effect that the appellant’s detention has had on his mental health, ability to recall details and sequences of events, and the logic of events presented in his claims.

18    The delegate additionally put to the appellant that he had declared in his entry interview that he came to Australia for employment, rather than for any need of protection. The appellant explained that he was a member of the BNP and came to Australia because of his problems in Bangladesh, and that after his long boat journey he could not remember what to say.

19    As to the documentary evidence supplied by the appellant in support of his SHEV application, the delegate considered country information about document fraud in Bangladesh and found that the evidence produced was satisfactory, and s 91WA(1) of the Act did not apply. The delegate noted discrepancies in the appellant’s documents, but formed the view that he had been able to provide plausible explanations for the inconsistencies and, on the balance, accepted that his identity was as claimed.

20    As to the appellant’s claim that he was falsely accused and charged with the bombing of a BNP meeting, the delegate did not accept the alleged charge against the appellant, nor that he was ever involved with the BNP. The delegate stated that the appellant did not raise the criminal charges or any protection claims in his entry interview, and considered the claims were created after the appellant arrived in Australia.

21    The delegate did not accept that the appellant was physically and mentally impaired during his entry interview to the extent that he could not understand the questions asked or recall information. The delegate ultimately did not consider the appellant to be a credible witness and did not accept that the appellant was involved in politics in Bangladesh; was a person of interest to the Awami League; faced any criminal charges in Bangladesh or had been facing any subsequent interest from the Bangladeshi police; or travelled to Australia for protection.

22    The delegate was satisfied that the appellant feared persecution for the reasons of his imputed political opinion of being opposed to the Government of Bangladesh as a result of the 2014 data breach and the Government being present at his entry interview on 8 May 2013. The delegate was further satisfied that the appellant feared persecution on the basis of his membership of a particular social group, being failed asylum seekers returning to Bangladesh.

23    The delegate found these reasons were the essential and significant reasons for the feared persecution, and the feared persecution involved serious harm and systematic and discriminatory conduct, as required under s 5J(4)(a)-(c) of the Act.

24    However, the delegate found that the appellant did not have a real chance of being persecuted in Bangladesh in relation to the 2014 data breach. The delegate noted that the 2014 data breach was explained to the appellant at his protection visa interview. The appellant, by his representative, said that if the data breach information was accessed by the Awami League, the Government of Bangladesh or the police, he may face an increased risk of harm if he returned to Bangladesh, as these organisations would be aware that he applied for asylum in Australia.

25    The delegate considered the likelihood of the Government of Bangladesh locating information about the appellant from the 2014 data breach was very remote and referred to country information about the lack of internet access in Bangladesh and that the Government was concerned with the profiles of other internet users at the time of the data breach.

26    The delegate further said that the reasons for the appellant’s protection visa application had not been made public, and the information from the 2014 data breach was online for a short period of time and was not easily accessible. The delegate concluded that it was highly improbable that the appellant would be imputed with a political opinion in opposition to the Government of Bangladesh because of the 2014 data breach, and so found that he did not have a real chance of being persecuted on this basis.

27    In relation to the appellant’s fear of persecution arising from the Government of Bangladesh being present at his interview with the Department in 2013, the delegate found that there had been no interest in the appellant since he departed Bangladesh and the interview was conducted over three years ago. Consequently, the delegate found there was no real chance that the interview would result in any mistreatment for the appellant upon returning to Bangladesh.

28    As to the appellant’s fear of persecution as a failed asylum seeker returning to Bangladesh, the delegate noted no country information indicating that there was a risk of harm for returnees to Bangladesh. The delegate found the appellant did not have a real chance of being persecuted for the reason of his status as a failed asylum seeker returning to Bangladesh.

29    For these reasons, the delegate was not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act and concluded that the appellant was not a refugee as defined in s 5H of the Act.

30    The delegate was therefore not satisfied that Australia had protection obligations to the appellant and found the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act.

31    The delegate was also not satisfied there were substantial grounds for believing there was a real risk the appellant would suffer significant harm as a necessary and foreseeable consequence of being removed to Bangladesh. Consequently, the delegate found the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(aa) of the Act.

Authority’s decision

32    On 20 July 2016, the Minister referred the delegate’s decision to the Authority pursuant to s 473CA of the Act. By a letter dated 20 July 2016, the Authority advised the appellant that he could provide new information in support of his case, but the Authority could only consider such information in limited circumstances.

33    The Authority stated that, on 29 July 2016, it received a submission from the appellant outlining his reasons for disagreeing with the delegate’s decision and inferred that he claimed aspects of his claims had been overlooked. The submission in this regard, it said, did not constitute “new information” as defined in s 473DC(1) of the Act and so the Authority had no regard to it.

34    The Authority noted the appellant, during his interview with the Department, made no mention of his or his family’s involvement with the BNP, that he ever had problems with Awami League members, that he had relocated to other areas in Bangladesh to avoid these problems while continuing his political work, or that he faced fabricated criminal charges that led him to live in hiding and eventually leave Bangladesh.

35    The Authority said the appellant explained in his SHEV application why details had been omitted from his entry interview, including that he was affected by the boat journey, starved and unable to think straight, and that he had not properly understood the Rohingyan interpreter at the interview. The Authority stated that it took these explanations into consideration and also took into account that the appellant’s length of detention may have negatively impacted, to some extent, his memory and ability to provide detail.

36    However, the Authority was satisfied that the appellant was provided with sufficient opportunities to clarify or provide relevant detail during his interview. The Authority did not accept that language barriers prevented meaningful communication, or that the boat journey affected his ability to answer questions, or that he was otherwise too confused to mention his problems arising from his BNP involvement.

37    The Authority further considered that given the appellant’s claimed duration of involvement of 11 years with the BNP, his history of family support and his claims of being personally harmed and threatened in different areas in Bangladesh because he was a recognisable BNP supporter, the information he provided in relation to his role in the BNP was vague and lacking in detail, and was not satisfied that these concerns were abated by his claimed mental challenges.

38    For these reasons, the Authority said, it was willing to accept the appellant held a political opinion in favour of the BNP, but did not accept he was an active supporter or had any level of involvement with the party.

39    The Authority was satisfied that the appellant had not been politically active with the BNP before or since arriving in Australia and there was no evidence to indicate that he would be politically active upon return. Consequently, the Authority did not accept that he would be imputed as an active BNP member or even be identified as holding a pro-BNP opinion upon return to Bangladesh.

40    The Authority also noted inconsistencies between the appellant’s claims of being accused of bombing a BNP meeting in October 2012 and the documentary evidence he provided to support the claims. The Authority noted that the First Information Sheet and Charge Sheet accused him of rioting, looting and using deadly weapons and bombs against intervening police officers, which contrasted with the appellant’s claims of being accused of throwing a bomb and attacking the BNP meeting itself.

41    The Authority stated that it had regard to the appellant’s mental health difficulties, but considered it significant that he was unable to accurately recall the claimed charges against him and that he would not have sought to find out the status or outcome of the claimed case against him. It was also significant, the Authority said, that he made no mention of these charges in his entry interview.

42    The Authority found it implausible that he would be charged with attacking a BNP meeting and was not satisfied that the appellant’s mental health status provided an explanation for these issues. The Authority further did not place any weight on his documentary evidence and did not accept he had been accused of the crimes claimed, or that any charges had been filed against him.

43    The Authority additionally did not accept the appellant was ever wanted by the Bangladesh authorities or faced a real chance of harm from the authorities or the Awami League in relation to the criminal charges.

44    As to any other risks that the appellant would face if he were to return to Bangladesh, the Authority stated that it was not satisfied the appellant would be prevented from obtaining employment or would not be able to subsist for any reason upon return.

45    The Authority accepted that the appellant’s unlawful departure from Bangladesh, his detention in Australia and his claim for asylum were known to the Bangladeshi authorities. The Authority further noted that he was questioned by Bangladesh government officials at his identity interview in May 2013 and that his details were among those temporarily released online during the 2014 data breach. However, the Authority was satisfied that no protection claims were discussed at the identity interview, and no asylum claims were published in the data breach. The Authority was therefore satisfied that the Bangladeshi authorities would not know the reasons the appellant put forward in his application and found that the appellant did not face a real chance of being harmed upon returning to Bangladesh as a failed asylum seeker.

46    The Authority was not satisfied that when considered as a whole, the appellant’s circumstances gave rise to a real chance of persecution from the Awami League, the Bangladeshi authorities or others on account of his claimed political involvement, the fabricated criminal charges against him, his poor financial situation, his illegal departure, or his immigration detention or asylum application in Australia.

47    For these reasons, the Authority found that the appellant did not meet the definition of a refugee in s 5H(1) of the Act.

48    The Authority was further not satisfied there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being removed from to Bangladesh, there was a real risk that he would suffer significant harm.

49    The Authority concluded that the appellant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act, and so affirmed the delegate’s decision not to grant the appellant a protection visa.

Judicial review in the federal circuit court

50    In a show cause application filed 7 October 2016, the appellant sought judicial review of the Authority’s decision on the following grounds, which were unparticularised:

1.    The assessor has made jurisdictional errors in making decision.

2.    The assessor failed to properly comply consider all of my claims.

3.    The assessor has made wrong conclusions in identifying genuine documents.

51    The Minister filed a response on 21 October 2016, opposing the orders sought by the appellant, on the following grounds:

1.    The application invites the Court to undertake a review of the merits of the Immigration Assessment Authority’s decision. To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court; MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC at [10].

2.    The application for judicial review does not establish any jurisdictional error in the decision of the Immigration Assessment Authority dated 2 September 2016.

52    The primary judge noted that both the appellant and the Minister prepared pre-hearing submissions. The appellant’s oral and written submissions, the primary judge said, sought to engage the court with the merits of his protection claims, which were beyond the scope of the proceeding.

53    As to ground 1 of the appellant’s application for review, the primary judge found the ground was no more than an unparticularised assertion that the Authority made a mistake and, of itself, could not constitute jurisdictional error.

54    As to the contention in ground 2 that the Authority failed to properly consider all of the appellant’s claims, the primary judge said:

(1)    the Authority had no obligation to refer to every piece of evidence and contention made by an appellant in its decision; and

(2)    in any event, the Authority considered each of the claims raised by the appellant and made findings in relation to those claims that were open to it.

55    As to ground 3, the primary judge said the ground appeared to be a complaint in relation to the weight placed on the documentary evidence submitted by the appellant. The primary judge noted that the Authority considered but did not place weight on such documents because it had significant concerns about the appellant’s evidence in circumstances where they were inconsistent with the appellant’s claims in relation to the bombing accusation, they were inconsistent with the appellant’s claimed political involvement, they post-dated the appellant’s departure from Bangladesh, and the appellant made no mention of the claims at his entry interview.

56    The primary judge stated that the weight to be given to the evidence was a matter for the Authority and could not be challenged in judicial review.

57    For these reasons, the primary judge concluded that the appellant failed to establish that the Authority’s decision was affected by jurisdictional error and, therefore, ordered that the review application be dismissed.

Appeal to this court

58    By a notice of appeal filed on 16 March 2017, the appellant relies on the following grounds of appeal:

1.    At para 30 a, b, c, d page 5 of the Federal Circuit Court (F.C.C.) decision annexed ‘KB 3’:-

30 a. they were inconsistent with the applicant’s claims in relation to the bombing accusation.

b. they were inconsistent with the applicant’s claimed political involvement.

c. they post-dated the applicant’s departure from Bangladesh.

d. the applicant had made no mention of the claims at his entry interview.

There was no fairness in the interview, it was more about getting information on boat smuggler operators and what route did I use to come to Australia in the Part C (page 10 – 15) of the entry interview annexed ‘KB 4’. As explained annexed ‘KB 1’ Protection Visa Assessment (PVA) decision (pages highlighted) and annexed ‘KB 2’ Immigration Assessment Authority (IAA) decision (pages highlighted) were the Delegate and the IAA Authority have written and admitted that the decision was based on the entry interview and became inconsistent with their interviews. The Officer from the Department of Immigration at the entry interview did not explained to me the meaning of protection and that this was a proper protection interview nor did the Officer said whatever it has been said will be used against me in the near future interviews as I at that time entered Australian waters illegally and resided in Christmas Island Immigration Detention Centre for sometime before transferred to onshore detention centres. I was scared of this entry interview as I thought that they were police and thought that I will be reported to the officials in Bangladesh. That’s the reason because of my sacredness, my story became inconsistent and the Delegate and the Authority has been using this to go against me. The Officer cannot take advantage of the situation without properly or without giving full information what the entry interview was about as already I was in a very new to the whole range of laws and policies in a very new land and have used against me at the later interviews. And the interpreter was a Rohingya with a different dialect and dialogue compared to Bangladesh language were many things were misunderstood and misinterpreted. The purpose of the interpreter was only to make me understand the Officer questions and translate what I said to the Officer. Not to help me regarding about protection application. Overall I was denied Procedural Fairness which became inconsistent and led to Jurisdictional Errors.

2.    The decisions makers have relied totally on DFAT information gathered from data of arrival records of returned asylum seekers and others who have departed Bangladesh illegally. This does not take into account the real chance of those returnees being detained and imprisoned at a subsequent date, thus resulting in loss of freedom and loss of livelihood. I am aware anecdotally of this happening to people deported recently to Bangladesh by Australia thus leading to a real fear that this will happen to me. I fear of possibility or threat of a penalty being imposed against me upon return for my illegal departure from Bangladesh was implicitly claimed in my fear of harm generally for that reason. I contend that the delegate and the Authority’s failure to consider this claim or integer of this claim constituted jurisdictional error and the Judge has also not fully considered this integer of this claim.

59    The Minister filed an outline of submissions responding to and rejecting those propositions on 7 August 2017.

60    In my view, the appeal should be dismissed, for the following reasons.

61    The first thing to note is that neither of these grounds of appeal were raised in the Court below and so leave is now required to rely on them.

62    By proposed ground 1 in his notice of appeal, the appellant refers to the Authority’s concerns with his evidence, as set out by the primary judge at [30] of his Honour’s reasons, and asserts that there was unfairness in his entry interview as it was “more about getting information on boat smuggler operators and the route to come to Australia”. He also states that he was scared at his entry interview because he thought he would be reported to officials in Bangladesh, that the interpreter had a different dialect and dialogue compared to his language and so there were many things he misunderstood and misinterpreted, and overall, he was denied procedural fairness. This, the appellant says, resulted in his evidence becoming inconsistent and led to jurisdictional errors.

63    However, as the Minister notes in his submissions, in his initial interview the appellant was specifically asked why he left Bangladesh, and he stated that he came to Australia to stay and work. When asked whether these were the only reasons he left, he responded again that he came to Australia to work. The appellant also answered “No” to questions about his and his family’s political involvement in Bangladesh and whether he or any of his family members had been involved in any activities or protests against the government.

64    I accept the proposition that there can be no breach of procedural fairness by the appellant being asked such questions at his initial interview. He was also advised at the commencement of his interview that it was his opportunity to provide any reasons why he should not be removed from Australia; that he was expected to give true and correct answers to the questions asked; and that if the information he gave at any future interview was different from what he was to say now, that could raise doubts about the reliability of what he had said.

65    In these circumstances, it is not necessary for me to rule on a submission by the Minister that, in any event, it is difficult to conclude that any unfairness in the initial interview process automatically bespeaks jurisdictional error on the part of the Authority when it made its decision.

66    As I have noted, proposed ground 1 of denial of procedural fairness was not a claim which the appellant made in his application for review to the Federal Circuit Court. Accordingly, leave is required to raise it. The appellant has not provided any explanation for the failure to raise it in the court below. Additionally, it lacks merit. While he contends that he was prejudiced by not having an adequate interpreter or understanding of questions put to him the record of interview does not sit easily with that contention. Having regard to the apparent lack of merit in the proposed ground and the failure to explain adequately why it was not advanced in the Court below, I would refuse leave to raise it now. See Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 at [39]-[44] and [46]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48]; [2004] FCAFC 158.

67    The appellant’s second ground of appeal alleges a failure by the delegate and the Authority to consider his claim that, as a returnee, there was a real chance of his being detained and imprisoned in Bangladesh, resulting in a loss of freedom and a loss of livelihood; and that his fear of the possibility or threat of a penalty being posed against him upon return for reason of his illegal departure from Bangladesh was implicitly claimed in his fear of harm generally for that reason.

68    The appellant complains that the delegate and the Authority relied completely on DFAT information, and that this did not take into account the real chance of those returnees being detained and imprisoned at a later date. He states in ground 2 that he is aware anecdotally of this happening to people recently deported to Bangladesh, thus leading to a real fear that it will happen to him; and that his fear of the possibility or threat of a penalty being imposed against him on his return for his illegal departure was impliedly claimed in his fear of harm generally for that reason. He contends that the failure of the delegate and Authority to consider this claim constituted jurisdictional error, and that the primary judge had also not fully considered this integer of his claims.

69    This is also not a ground upon which the appellant relied in his judicial review application in the court below, and so he requires the leave of the Court to raise it now on appeal.

70    No explanation has been provided as to why this claim was not raised in the Court below. In my view, it also has no prospects of success. Leave to argue the second ground should be refused.

71    As it transpires, The Authority did consider whether the appellant would face adverse attention and penalties by reason of his illegal departure. At [48] of its reasons, the Authority stated it accepted that the appellant was already known to Bangladesh authorities as an immigration detainee in Australia who departed illegally. However, the Authority was not satisfied that the appellant would be of adverse interest to the authorities for any reason, and DFAT reported that most returnees do not face adverse attention upon arrival and there is no evidence that penalties for illegal departure are enforced. The Authority therefore concluded that it was not satisfied that the appellant faced a real risk of significant harm on the basis of returning as a failed asylum seeker who departed illegally. Those conclusions were reasonably open to the Authority.

Orders

72    For these reasons, the appeal should be refused with costs.

Associate:

Dated:    14 August 2017