FEDERAL COURT OF AUSTRALIA

DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

LEE J:

a    introduction

1    By notice of appeal filed on 13 March 2017, the appellant appeals from a decision of the Federal Circuit Court made in February 2017 to dismiss an application for judicial review of a decision of the Immigration Assessment Authority (IAA).

2    The IAA had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Safe Haven Enterprise Visa (subclass 790) (Visa). The evidence read on the appeal establishes that the appellant was, to use the words in s 5AA(1) of the Migration Act 1958 (Cth) (Act), an “unauthorised maritime arrival”, in that he entered Australia at an excised offshore place. That happened because the vessel upon which the appellant was travelling to Australia was intercepted by a Royal Australian Navy ship on 7 April 2013, four nautical miles north of the Ashmore Islands. Due to problems with the vessel’s engine, the naval ship embarked all those on the distressed vessel and the next morning arrived at the Ashmore Islands within the Territory of Ashmore and Cartier Islands. The appellant was then transferred to an Australian Customs vessel and conveyed to Darwin, disembarking on 14 April 2013.

3    The significance of the appellant being an unauthorised maritime arrival is that persons who entered Australia at an excised offshore place when the appellant arrived are subject to the fast track review process (FTRP) introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which relevantly inserted Part 7AA into the Act. The statutory regime introduced by Part 7AA is summarised in some detail in two recent Full Court decisions: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [11]-[26] per Griffiths J and BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 at [64]-[75] per Charlesworth J.

4    It suffices for present purposes to say that, as the simplified outline in s 473BA of the Act states, Part 7AA:

provides a limited form of review of certain decisions…to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country.

5    The FTRP scheme was intended to introduce “rapid”, “efficient” and “streamlined” processing of the relevant caseload (which, according to the Minister’s second reading speech, was approximately 30,000 persons). Three important aspects of the scheme (which are said to facilitate the streamlined nature of the process) deserve mention.

6    First, in accordance with s 473CA of the Act, the Minister must refer a “fast track reviewable decision” to the IAA as soon as reasonably practicable after a decision is made under s 65 of the Act. Accordingly, unlike Part 7 of the Act, the person whose visa application is rejected need not apply for review (hence, Part 7AA uses the term “referred applicant”).

7    Secondly, the “core function” of the IAA under Part 7AA is to “arrive at the correct or preferable decision in the case before it according to the material before it”: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 342 [10] per French CJ. Having said this, the scheme does not give to the IAA the power to set a decision aside and substitute a new decision; it may, however, remit the decision for reconsideration in accordance with such directions or recommendations as are permitted by regulation.

8    Thirdly, in comparison to the position under Part 7 of the Act, the FTRP scheme limits referred applicants’ rights under Part 7AA of the Act to give (and the IAA’s duties to receive and consider) material in support of their claims. This limitation has occurred by the legislature defining exclusively the referred applicants’ rights: see s 473DA(1), which provides that “[Division 3], together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [IAA].”

9    Against this statutory background, I come to the circumstances of this appeal.

b    decision of the iaa and the federal circuit court

10    In July 2016, the delegate of the Minister made a decision to refuse to grant the Visa to the appellant. This was after the appellant appeared in an interview before the Minister’s delegate in April 2016 and after subsequent representations were made by the appellant’s former representative in May 2016.

11    In accordance with the FTRP scheme I have described above, in August 2016, pursuant to s 473CA, the Minister referred the delegate’s decision to the IAA for review. The appellant was notified of the referral on that day and was advised that he could provide new information to the IAA, but that the IAA could only consider such information in limited circumstances. Shortly thereafter, the appellant provided a submission to the IAA and also provided a copy of the letter that he had sent to the Minister on 15 May 2014 in relation to the “data breach” incident which occurred in February 2014.

12    In September 2016, the IAA affirmed the delegate’s decision. In doing so, the IAA acknowledged that the appellant’s claims had been “presented consistently since he was first interviewed on arrival in Australia”. Despite the consistent nature of the appellant’s claims, an adverse view was formed as to the appellant’s credibility, which rested on what was said to be a number of inconsistencies, discrepancies and implausibilities in the presentation of his material. Without seeking to be exhaustive, this included the following:

(a)    the IAA had difficulty accepting that the appellant’s impact on the respective positions of the Bangladesh Nationalist Party (BNP) and the Awami League was so significant after being involved for no longer than two months, that local party members would have set out to kill him or have him imprisoned on a false murder charge;

(b)    the actions of the appellant in remaining at his usual place of residence and his workplace after November 2012 (when he was allegedly threatened with harm by the Awami League) until February 2013, were in tension with his claim that he had left both his village and Bangladesh in fear of his life;

(c)    the appellant’s explanation that the Awami League was not interested in him once the false murder charge had been brought against him; indeed, the appellant’s claim concerning the false charge was regarded as not being credible;

(d)    a charge sheet relied upon was not genuine and the appellant was said to be not telling the truth about the charges he claimed he faced;

(e)    an inherent inconsistency existed in the notion that it was too difficult for the Awami League to locate the appellant while he was staying with a relative five kilometres from his home, but that the Awami League would be able to locate him in the capital, Dhaka.

13    The IAA assessed the appellant’s circumstances against the refugee criteria in the Act and was not satisfied that the appellant was subjected to harm or any threat of harm from the Awami League prior to his departure from Bangladesh, nor was it satisfied that the appellant faced a real risk of serious harm at the hands of the Awami League on the basis of his political opinion and activities.

14    Notwithstanding this, the IAA acknowledged that there may be some “small possibility” that the appellant would face some kind of harm, such as harassment, if he were to maintain a low-level involvement with the BNP upon returning to Bangladesh, but it was not satisfied that the appellant faced a real risk of serious harm amounting to persecution. Similarly, the IAA was not satisfied that the appellant faced a well-founded fear of persecution on the basis of the “data breach” incident or on the basis of him being a failed asylum seeker. Finally, the IAA found that the appellant had departed Bangladesh unlawfully, but that the likelihood that the appellant would be prosecuted for having done so was small and, in any event, that any penalties to which the appellant may be subjected would be applied in a non-discriminatory manner as a law of general application. For similar reasons, the IAA rejected the appellant’s claim for complementary protection.

15    Following the IAA affirming the delegate’s decision, in October 2016, the appellant applied to the Federal Circuit Court for judicial review. The primary judge summarised the background to the judicial review application, including the IAA’s reasons, at [1]-[18]. At [19], the primary judge turned to the three grounds specified in the application. In summary, it was contended that the IAA constructively failed to review the delegate’s decision and denied procedural fairness to the appellant, and gave him inadequate opportunity to reply to adverse information. Additionally, it was said that because the appellant’s credibility was an important factor in IAA’s decision, and by refusing to schedule an oral interview with the appellant, the IAA fell into error of law and/or denied the appellant procedural fairness. In this way it can be seen that the two grounds advanced before the primary judge were interrelated and were essentially complaints as to procedural fairness.

16    The difficulty with the procedural fairness contentions was that it overlooked the IAA’s limited procedural fairness obligations under Part 7AA of the Act and its obligation to review the delegate’s decision in accordance with s 473DB(1). Section 473DB is in the following terms:

Immigration Assessment Authority to review decisions on the papers

(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a) without accepting or requesting new information; and

(b) without interviewing the referred applicant.

(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

17    As the primary judge found, the IAA was under no obligation to request or accept new information from the appellant, whether orally or in writing and even if requested to do so: see s 473DC(2). As to the oral interview, again, as the primary judge pointed out at [46], while the IAA has a discretion under s 473DC(1) and/or (3) to invite an applicant to an interview to give new information, it is plain that is has no duty to do so: see s 473DC(2). As the primary judge noted (at [46]):

If the [IAA] were (sic) compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be the [IAA] generally coming under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s. 473DC(2), but would also defeat the purpose of the [FTRP].

c    consideration of the appeal

18    The only ground of appeal advanced before me is that:

The IAA reviewer failed to refer to the revised DFAT Country Information Report on Bangladesh despite the fact that it was released on 5 July 2016 and replaced that of 20 October 2014 which was used by the DIBP assessor. Paragraphs 3.57 and 3.58 of the July 2016 report are relevant to the applicant. By failing to take account of the most up to date DFAT report as is required by Ministerial Direction Number 56 of 21 June 2013 under s 499 of the Migration Act 1958 the IAA reviewer and the FCC judge denied the applicant natural justice.

(Uncorrected)

19    One can immediately see the challenge that faces the appellant in identifying recognisable error in the approach taken by the primary judge, given that the argument sought to be advanced on appeal was not one which was advanced directly below. It has the additional procedural difficulty in that this Court in its appellate jurisdiction does not have the power to review the decision of the IAA. For this reason alone, the ground of appeal alleging error by the IAA must fail.

20    Having said this, if one was to characterise the appeal as suggesting error on behalf of the primary judge in failing to find jurisdictional error on behalf of the IAA, one returns to the difficulty mentioned above about how one establishes error when the argument on appeal was not advanced in the same way before the primary judge.

21    When the matter came before me in August 2017, I was anxious to ascertain precisely what had happened in relation to the DFAT country information report, given its centrality to the way in which the appellant now puts the case. Additionally, this matter was first listed at a time when Part 7AA had not been the subject of any authoritative guidance by this Court, and further assistance was requested by way of submissions being made as to the relationship between the notice of appeal and the dealings between the Secretary of the Department and the IAA in providing material in respect of the decision made (see s 473CB of the Act). In any event, further evidence and submissions were filed.

22    It is plain that the documents provided to the IAA by the Secretary did not include a copy of the document entitled “DFAT Country Report, Bangladesh, 20 October 2014” (2014 Report), nor a copy of the document entitled “DFAT Country Information Report, Bangladesh, 5 July 2016” (2016 Report). Reference was made by the delegate to the 2014 Report and I have reviewed the three referenced footnotes. It is unnecessary to go into those references for the purposes of these reasons, but it is fair to say that, in respect of each of the three matters referred to by the delegate to which reference was made in the 2014 Report, similar factual contentions are made in the 2016 Report.

23    In any event, I would infer that the reason why the 2014 Report was not given to the IAA was by reason of a practice direction given by the President of the IAA on 1 July 2015, pursuant to s 473FB of the Act (Practice Direction 2), to the effect that where the written statement of a decision to refuse a protection visa that is referred to the IAA for review contains a reference to a document comprising country of origin information, then if the document is available to the IAA in CISNET (as was the case here), the document in CISNET will be taken to be review material given to the IAA pursuant to s 473CB(1)(c) of the Act.

24    It follows that the review material before the IAA included, in this way, the 2014 Report to which the IAA had regard, but did not include the 2016 Report. It necessarily follows that there was no jurisdictional error by reason of the IAA not having regard to the 2016 Report when it was not material provided to it by the Secretary pursuant to s 473CB(1)(c). Moreover, even if it could be said that the 2016 Report was material, it must be remembered that the obligation to give material in the Secretary’s possession to the IAA only arises if the Secretary (or the Secretary’s delegate) has formed the subjective view that the material is relevant to the IAA’s review at the time of the referral. There is simply no basis for inferring that the Secretary considered that the 2016 Report was relevant but nonetheless did not provide it.

25    I have also considered whether it could be said that there was any jurisdictional error by reason of the IAA failing to have regard to the 2016 Report as “new information” pursuant to s 473DC(1) of the Act. This cannot be the case as the IAA neither had the 2016 Report before it, nor did it seek it; there was no duty resting upon the IAA to get, request or accept any new information. There is nothing on the face of the reasons of the IAA from which it could be inferred that the IAA considered exercising its discretion to get in the 2016 Report and determined not to do so.

26    As is seen from the sole ground of appeal extracted at [18] above, the appellant refers specifically to paragraphs 3.57 and 3.58 of the 2016 Report as being of relevance to him. Those paragraphs provide as follows:

3.57 DFAT assesses that under the current AL Government BNP leaders and JI members are subjected to a high level of official discrimination during periods of heightened political tension, particularly national elections. JCD and ICS members are subjected to a moderate level of harassment from members of the Chattra League. BNP supporters or members in rural areas are subjected to a low level of violence associated with AL extortion.

Politically Motivated Violence

3.58 Most inter-party violence (AL versus BNP) occurs during periods of heightened political unrest, particularly during national elections and hartals (strikes). JI-led anti-ICT protests have also resulted in violence, although these protests have been less violent and have garnered less support since 2013. Credible sources have told DFAT that inter-party violence is most prevalent outside Dhaka, particularly in northwest and southeast Bangladesh.

(Uncorrected, bolding and italics in original)

27    To the extent that this information is in any real way different to that contained in the 2014 Report (see [22] above), this does not assist as there has been no attempt to show how any different material could conceivably have made any difference. Apart from anything else, the appellant faces the hurdle of the credibility findings made by the IAA, based on the evidence he had given before it. The IAA considered that the appellant’s evidence was affected by inconsistencies, discrepancies and implausibilities, the essence of which have been extracted at [12] above. Put simply, the credibility findings by the IAA are such that having access to paragraphs 3.57 and 3.58 of the 2016 Report could not have led to the IAA arriving at a different decision and concluding that the appellant was owed protection obligations.

28    In any event, the IAA was not in error in failing to obtain the 2016 Report. It is simply not apparent that the IAA would have found that the 2016 Report “may be relevant” for the purposes of s 473DC(1)(b) of the Act, such that it would have been considered “new information” when one has regard to the essence of the appellant’s claim, which has been summarised above. Further, and fatally, even if it were new information, the IAA was under no duty to obtain new information: see s 473DC(2) of the Act.

d    orders

29    For these reasons, the only ground of appeal fails and the appeal must be dismissed with costs.

Associate:

Dated:    9 January 2018