FEDERAL COURT OF AUSTRALIA
CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant is to pay the costs of the first respondent as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 This is an appeal from orders made by the Federal Circuit Court dismissing the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the IAA). The IAA is established by Div 8 of Pt 7AA of the Act and is part of the Migration and Refugee Division of the Administrative Appeals Tribunal (the AAT). The IAA had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the appellant a Safe Haven Enterprise (Class XE) Subclass 790 visa (the safe haven visa). The safe haven visa is a class of temporary protection visa, as provided for by s 35A of the Migration Act 1958 (Cth) (the Act). As such, it was necessary for the appellant to satisfy the criteria for a protection visa in either subs 36(2)(a) (the refugee criterion) or subs 36(2)(aa) (the complementary protection criterion): see subs 35A(6) of the Act.
2 For the reasons set out below the appeal must be dismissed.
2.1 The application for a visa
3 The appellant is a citizen of Bangladesh who entered Australia as an unauthorised maritime arrival (as defined in s 5AA of the Act) on 12 November 2012. The appellant was interviewed by the Department of Immigration and Border Protection (the Department) on 14 November 2012. At that time, the appellant made no mention of his claims to fear persecution or harm.
4 As an unauthorised maritime arrival, the appellant was initially precluded from making a valid application for a visa onshore: see s 46A of the Act. However on 7 July 2015 the Minister exercised his power under subs 46A(2) of the Act to permit the appellant to apply for the safe haven visa.
5 On 17 August 2015, the appellant applied for the safe haven visa. He provided a statement dated 27 July 2015 in support of his application setting out his claims for protection. The appellant claimed to fear persecution at the hands of the Awami League on the basis of his membership of the Bangladesh Nationalist Party (the BNP). In particular, he claimed to have been wrongly accused in April 2007 of murdering a member of the Awami League, an accusation which he said was politically motivated, and to have been attacked by a group of men after threats were made to his mother about the level of his political involvement in the BNP.
6 The appellant attended an interview with the Minister’s delegate on 22 October 2015. On 25 November 2015, the delegate wrote to the appellant inviting him to comment on adverse information that the delegate considered would be the reason, or part of the reason, for refusing to grant him the safe haven visa. By a letter dated 22 December 2015, the then representative for the appellant responded to the Departmental letter.
7 On 14 June 2016, the delegate made a decision to refuse to grant the appellant a safe haven visa on the ground that the delegate did not consider that he was a person in respect of whom Australia owed protection obligations so as to satisfy the criteria in subss 36(2)(a) or (aa) of the Act. In particular, the delegate did not accept that the appellant was a member of the BNP, he had been threatened due to an affiliation with the BNP, he was attacked by the Awami League due to an actual or imputed affiliation with the BNP, or he had been falsely accused of murder. These findings led the delegate to reject the appellant’s claims in their entirety.
2.3 The fast track referral to the IAA
8 The delegate also found that the appellant satisfied the definition of a fast track applicant in subs 5(1) of the Act. Accordingly, the delegate’s decision was referred by the Minister to the IAA pursuant to s 473CA of the Act.
9 The appellant was notified of the referral by the IAA by email on the following day. The letter explained that the IAA would proceed to make a decision on the appellant’s case on the basis of the information sent to it by the Department unless the IAA decided to consider new information. The letter also pointed out that the consideration of such new information could occur only in limited circumstances. Those circumstances were said to be explained in documents attached to the email, being a fact sheet in English and Bengali entitled “What you need to know about the Immigration Assessment Authority” and the Practice Direction for Applicants, Representatives and Authorised Recipients (the Practice Direction). The Practice Direction was issued by the then President of the AAT pursuant to s 473FB of the Act. It explained that the appellant could provide a written submission on why he disagreed with the delegate’s decision and as to any claim that had been overlooked by the delegate.
2.4 The appellant’s submission to the IAA
10 The appellant’s former representative provided a submission to the IAA on 11 July 2016. In the submission, the appellant repeated his claims to fear persecution by agencies of the Bangladeshi State by reason of:
(1) his political opinion as a supporter of, and an activist with, the BNP, due to its opposition to the Awami League; and/or
(2) his membership of a particular social group as a political activist who has been falsely accused of a crime for political reasons.
11 In relation to the adverse credibility findings made by the delegate, the appellant’s representatives submitted to the IAA that the appellant was disadvantaged in his interview for the safe haven visa by “extremely poor interpreting”, relying upon the audio recording of the interview. The submission also alleged that the delegate failed to take into consideration the fact that the appellant’s family had to leave Bangladesh for the same political reasons as those claimed by the appellant, attaching evidence to prove that his family were living overseas. Further, the submission referred to country information suggesting that political activists at all levels may be at risk of harm, that police corruption is a very serious problem in Bangladesh, that the judiciary is not independent, and that extrajudicial killings in Bangladesh remain widespread.
12 The IAA accepted that the appellant is a citizen of Bangladesh and that this was his receiving country for the purpose of the assessment (IAA reasons at [12]).
13 The IAA first considered the appellant’s claim to have a well-founded fear of persecution for a Refugee Convention reason so as to satisfy the criterion in subs 36(2)(a) of the Act (IAA reasons at [10]-[42]). However, the IAA ultimately rejected his claims to fear persecution by reason of his involvement with the BNP and his claims that members of his immediate family were politically active with the BNP. In particular, the IAA was not satisfied that the appellant had demonstrated any specific knowledge of the BNP. The IAA did not accept that the vagueness of the appellant’s BNP knowledge was because of the allegedly poor quality of interpreting (IAA reasons at [19]-[20]). Nor did it accept his explanations for failing to mention his BNP involvement at his entry interview, or the claim that he had previously been targeted on account of his political activities, because he was too frightened or traumatised to answer questions accurately (IAA reasons at [24]). Thus, while the IAA accepted that the appellant was attacked by a group of men in 2007, it did not accept that the attack was politically motivated or that he received other threats following the attack through his mother from the Awami League. Rather, the IAA found that the 2007 attack was an isolated criminal incident and that no other threats were issued (IAA reasons at [25]). Nor did the IAA accept that the appellant’s immediate family fled Bangladesh for reasons relating to his political involvement.
14 The IAA also did not accept the appellant’s claims to have been falsely accused of murdering a local Awami League leader (IAA reasons at [29]). The IAA reached this finding in the context of having rejected the appellant’s claims regarding his involvement with the BNP, the fact that the appellant did not mention the murder charge prior to his application for the safe haven visa, and its rejection of his explanations for the lack of detail and omissions at his entry interview (IAA reasons at [27]-[35]). Nor did the IAA consider that the appellant faced a real chance of harm on any other basis.
15 The IAA then considered whether the appellant was a person to whom Australia owed complementary protection obligations so as to satisfy the criterion for a protection visa under subs 36(2)(aa) of the Act (IAA reasons at [43]-[51]). Having considered the appellant’s claims individually and in their totality, the IAA was not satisfied that the appellant would face a real risk of significant harm in the reasonably foreseeable future if returned to Bangladesh. In reaching that conclusion, among other things, the IAA took into account its earlier findings that it was not satisfied that the appellant had any involvement with the BNP or had been falsely accused of murder. Based upon the country evidence, the IAA also rejected the appellant’s claims to fear harm as a failed asylum seeker and through generalised violence by virtue of the unstable political situation in Bangladesh.
2.6 The decision of the Federal Circuit Court
16 By his amended application for judicial review in the Federal Circuit Court, the appellant, who was unrepresented, raised three grounds of review with a somewhat confusing list of particulars. Ground 1 alleged that the IAA denied the appellant procedural fairness by reason of the failure to afford him a hearing and the opportunity to provide new information in accordance with subs 473DC(1) of the Act. Ground 2 (marked as the second occurring paragraph 3) alleged jurisdictional error by reason of the IAA’s failure to apply the test for persecution under the Act on the basis that the appellant had provided adequate information about the BNP, had explained his failure to provide that information at his entry interview, and had been disadvantaged by poor interpreting at the safe haven visa interview. Ground 3 alleged jurisdictional error by reason of a failure to provide reasons for rejecting the appellant’s claims for complementary protection under subs 36(2)(aa) of the Act.
17 On 27 June 2017, the Federal Circuit Court dismissed the application for judicial review and gave ex tempore (i.e. oral, contemporaneous) reasons. The primary judge found that the appellant had advanced six grounds of judicial review. There is certainly a lack of clarity as to the precise formulation of the appellant’s grounds of review in the Federal Circuit Court. Although in my view, the appellant’s grounds were more limited than those elucidated by the primary judge, ultimately his Honour reviewed the substance of each of the appellant’s grounds of review. First, in relation to Ground 1 the primary judge held that the IAA was not required under Part 7AA of the Act to invite the appellant to give new information or afford him an opportunity to appear to give evidence (FCC reasons at [34]-[39]). The primary judge however went on to find that:
36. The [IAA] was not required, in the circumstances of the present case, to invite the applicant to give new information, either in writing or at an interview. This is a case where the applicant was alive to the credibility issues that had been raised by the delegate, and those credibility issues were expressly the subject of submissions by the applicant’s representative in accordance with the opportunity provided by the [IAA].
37. The invitation by the [IAA] to the applicant to put on submissions and the opportunity to provide new information, as well as the taking into account of the same, complied with the [IAA’s] obligations of procedural fairness under Part 7AA. On the face of the material before the Court, the [IAA] complied with its obligations in the conduct of the review under Part 7AA. The applicant had the opportunity to put on submissions and alleged new information, and the adverse finding by the [IAA] in respect of the new information that the [IAA] did not take into account was, for the reasons given, open.
18 I note that the primary judge’s findings at [36] and [37] are challenged by the Minister by his notice of contention (see [25] and [59] below).
19 Secondly, in relation to Ground 2 alleging that the IAA did not provide reasons for its complementary protection findings, the primary judge held that the IAA had expressly rejected the alleged complaints regarding the standard of interpreting before the delegate for reasons open to it (primary judge’s reasons at [41]). The primary judge also held that no error was apparent in the IAA’s consideration of the weight to be given to evidence or otherwise in rejecting the appellant’s claims (primary judge’s reasons at [40]-[45]). Finally, in relation to Ground 3 the primary judge found that “…it is apparent from the [IAA’s] reasons that the [IAA] expressly considered, in an orthodox fashion, the applicant’s claims in relation to complementary protection” (primary judge’s reasons at [46]).
3. OVERVIEW OF THE FAST TRACK PROCESS UNDER THE ACT
20 Part 7AA of the Act (comprising ss 473BA-473JF) was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the amending Act) and commenced on 18 April 2015. The amendments introduced a Fast Track Assessment Process (fast track process) providing a mechanism for limited merits review by the IAA in respect of certain adverse protection visa decisions. As the simplified outline of Pt 7AA in s 473BA explains, the fast track process 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.
21 For present purposes, it is important to note the following aspects of the fast track process.
(1) The Minister must refer a fast track reviewable decision (as defined in s 473BB) to the IAA “as soon as reasonably practicable after the decision is made” (s 473CA). At the same time as the referral is made (or as soon as reasonably practicable thereafter), the Secretary must give to the IAA “review material” in respect of the referred decision (s 473CB). The review material must include a copy of the primary decision-maker's written reasons for decision and any material provided to the primary decision-maker by the referred applicant, together with “[a]ny other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the [IAA]) to be relevant to the review” (subs 473CB(1)(a)-(c)).
(2) The IAA must “review” a fast track reviewable decision referred to it under s 473CA (s 473CC(1)). In the exercise of its review function, subs 473FA(1) requires the IAA “to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).”
(3) The conduct of the review is governed by Div 3 of Part 7AA (comprising ss 473DA-473DF). Importantly, s 473DA provides that Div 3 (together with ss 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 Immigration Assessment Authority.”: see further below at [44]-[47] . When read together with s 473DA, the scope of material which may be considered by the IAA is limited by Subdiv C of Part 7AA. As a result, in general the review is conducted on the papers by reference to the material provided to the IAA by the Secretary under subs 473CB(1): Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 (AMA16) at [19] (the Court). Exceptionally, however, the IAA is permitted to consider new information where the criteria in s 473DD are met, namely: (a) exceptional circumstances exist justifying the consideration of new information; and (b) the new information was not, and could not have been, provided to the Minister before a decision was made under s 65, or the new information is “credible personal information” which was not previously known but, if known, may have affected the consideration of the referred applicant's claims (see further below).
22 Thus, as the Explanatory Memorandum to the Bill which introduced Pt 7AA explains (in an overview described as “helpful” by the Full Court in AMA16 at [13]):
In carrying out its functions under the Migration Act, the IAA is to pursue the objective of providing a mechanism of limited review that is efficient and quick. While there will be discretionary powers for the IAA to get new and relevant information and to get information in the most suitable and convenient way from applicants, the IAA is under no duty to accept or request new information or interview an applicant.
As a limited review body, other than in exceptional circumstances, the IAA is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the IAA obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant's country of origin that means the applicant may now engage Australia's protection obligations. Where an applicant provides or seeks to provide the IAA with new information of their own volition, they would also have to satisfy the IAA that the new information could not have been provided to the Minister before the primary decision was made. The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia's protection obligations by the Department of Immigration and Border Protection.
4. CONSIDERATION OF THE APPEAL
23 By the notice of appeal, the appellant, who was unrepresented below and in this Court, raises a number of grounds of appeal, namely, that the primary judge erred in failing to hold that:
(1) the IAA failed to apply the correct test in subs 36(2)(aa) of the Act to determine if the appellant satisfied the test for complementary protection (FCA Ground 1);
(2) the IAA exceeded its jurisdiction or constructively failed to exercise its jurisdiction (FCA Ground 2);
(3) the IAA “made inconsistent assertions on the credibility testimony” (FCA Ground 3);
(4) the appellant was denied procedural fairness when the Department failed to conduct the first and second interviews “by a standard Bangladeshi Language Interpreter”, the IAA “fully relied on the Departmental records of hearing and did not believe it is relevant”, and the IAA “did not give importance of Communication barriers and made decision with closed mind” (FCA Ground 4);
(5) the IAA did not afford the appellant a hearing (FCA Ground 5); and
(6) “Sub(2) of s 473DC(3) was not used intentionally in the name of fast track notion of Department. A judicial procedural requirement for fair trial or hearing was discarded which is essence of the common law. [The primary judge] failed to hold the judicial foundation of the Common law and compromise with the Department.” (FCA Ground 6).
24 The written submissions filed by the appellant essentially repeat, without elaborating upon, his grounds of appeal.
25 In addition, by a notice of contention filed on 2 August 2017 the Minister contends that the decision at first instance should be affirmed on grounds other than those relied on by the Court below. These grounds relate to the Authority’s procedural fairness obligations and read as follows:
1. In rejecting what his Honour identified as grounds one to four of the application before the Court, the primary Judge ought to have held, in summary, that unlike the Administrative Appeals Tribunal, which is obliged, under s 425(1) of the [Act] to invite a review applicant to a hearing to give evidence and present arguments in relation to the decision under review [the IAA] is under no such duty under Part 7AA of the Act.
2. While s 473DC(3) confers upon the IAA a discretion to invite an applicant to give new information, subs (2) provides that the IAA is under no duty to get, request or accept such information under any circumstances. Further, s 473DA(1) provides that the provisions in Division 3 are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. It supplies the “plain words of necessary intendment” that are required to exclude general law notions of procedural fairness.
3. In so far as the contrary suggested by his Honour’s judgment at [36]-[37], it is respectfully contended that the IAA was under no obligation to send to the Appellant the correspondence identified by that paragraph.
26 For reasons I later explain, it is unnecessary to consider the issues raised by the notice of contention.
27 FCA Grounds 2, 3 and 6 are conveniently deal with at the outset. As the Minister submitted, these grounds are unintelligible, unparticularised, and fail to specify the nature of the errors allegedly committed by the Court below or the IAA. Nor were these grounds elaborated upon in oral or written submissions. In those circumstances, they must be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J) (applying WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (Lucev J) and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 (Siopis J)).
4.3 Alleged failure to apply the correct test under subs 36(2)(aa) in assessing the complementary protection claim (FCA Ground 1)
28 It will be recalled that a criterion for the grant of a protection visa is that the visa applicant is a non-citizen in respect of whom the Minister is satisfied that Australia has protection obligations because the person satisfies the refugee criterion in subs 36(2)(a) or, in the alternative, is a non-citizen who satisfies the complementary protection criterion in subs 36(2)(aa). By the first ground of appeal, the appellant contends that the primary judge ought to have held that the IAA failed to apply the correct test under subs 36(2)(aa) and in particular, fell into error in failing to deal separately with these alternative criterion.
29 This ground must be dismissed. The IAA plainly gave consideration to each criterion in its reasons, finding first that the appellant did not meet the criterion in subs 36(2)(a) at [10]-[42] of its reasons, and secondly that he did not meet the criterion in subs 36(2)(aa) at [43]-[51]. In so doing, the IAA’s reasons disclose that it addressed each criterion separately by applying the relevant statutory tests to the particular findings of fact. The fact that, in rejecting the appellant’s claims to complementary protection, the IAA relied upon findings of fact made earlier in the context of considering the appellant’s claims to protection as a refugee does not of itself demonstrate jurisdictional error: see e.g. SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54]-[56] (Robertson J); SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32] (the Court); DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 (DBE16) at [54]-[56] (Barker J). In particular, the IAA’s rejection of the appellant’s claims as to his involvement with the BNP and that he had been falsely accused of murder, which were made in the context of determining whether he had a well-founded fear of persecution for a Refugees Convention reason, were equally relevant to a consideration of whether there was a real risk that the appellant would suffer significant harm if returned so as to engage Australia’s complementary protection obligations. In those circumstances, the IAA did not fall into jurisdictional error in relying upon its earlier findings, rather than setting out again each of the appellant’s claims under the heading “Complementary protection assessment” and repeating the reasons for rejecting those claims: DBE16 at [56]. It follows that no error has been demonstrated in the primary judge’s finding rejecting this ground.
30 Finally, I note that the Minister properly drew the Court’s attention to the apparent error in the IAA’s reasons at [47] where, in the context of assessing the appellant’s complementary protection claim under subs 36(2)(aa), the IAA said that it did not accept that the appellant “faces a real chance of persecution through generalised political violence.” That language wrongly picks up the test under subs 36(2)(a) and ss 5H-5J of the Act, instead of subs 36(2)(aa). However, I agree with the Minister’s submission that, fairly read as a whole in line with the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, the IAA’s reasons reveal that it understood and applied the correct test under subs 36(2)(aa) of the Act. In particular the IAA states the correct test in the sentence immediately following the sentence containing the error and otherwise throughout its consideration of whether the appellant meets the criterion under subs 36(2)(aa).
4.4 Alleged denial of procedural fairness by reason of deficiencies in the quality of interpreting (FCA Ground 4)
31 By FCA Ground 4 of the notice of appeal, the appellant alleges that:
The appellant was denied natural justice and procedural fairness when the hearing at first interview and second interview conducted by the Department was not conducted by a standard Bangladeshi Language Interpreter. The Issue of Interpreting was raised by the appellant during Federal Circuit court hearing but Hon Judge discarded this ground. The IAA made a jurisdictional error when it fully relied on the Departmental records of hearing and did not believe it is relevant. The IAA did not give importance of Communication barriers and made decision with closed mind.
32 The last aspect of FCA Ground 4 complains of the failure by the IAA to afford an opportunity to the appellant “to send or express details about miscommunication because he was not called for hearing before IAA.” That aspect of FCA Ground 4 is more conveniently dealt with when considering FCA Ground 5 which complains generally about the absence of a hearing by the IAA (see below at [43] – [47]).
4.4.2 The IAA’s consideration of the alleged deficiencies in the interpretation of the interview
33 The quality of interpreting at the interview with the delegate was expressly raised by the appellant’s representatives in their submission to the IAA in relation to the adverse credibility findings made by the delegate. Specifically the appellant’s representatives submitted that:
The delegate found that [the appellant] was unable or unwilling to describe his personal experiences as a BNP member to a level that the Delegate would reasonably expect.
We submit that it is extremely unfortunate and unfair that negative credibility findings were made against [the appellant] on this point. The decisions makers [sic] should be mindful of the difficulties of assessing oral evidence provided through an interpreter.
We submit that a review of the audio record of the interview shows that [the appellant] was considerably disadvantage [sic] by extremely poor interpreting. The client has advised us that the interpreter had the Burmese accent and it was difficult to understand. The client noticed that at times the interpreter was not interpreting every word he said. We submit that this could be the reason why the Delegate felt that the applicant was “unable or unwilling” to describe his experiences as a BNP member.
34 The submission referred in this regard to the AAT’s Guidelines on the Assessment of Credibility at [22] advising that the educational, social and cultural background of a person may affect the manner in which the person provides her or his evidence.
35 The IAA specifically addressed this submission, having listened to the audio recording of the entry interview as it was invited to do. However the IAA rejected the submission for the following reasons:
20. The submission to the IAA indicates that the applicant had concerns about the quality of interpreting during the [safe haven visa] interview, in particular that the interpreter had a difficult to understand “Burmese accent” and at times was not interpreting every word he said. However, no specific examples of interpretation error or omissions have been provided and having listened to the interview, I am satisfied the applicant was made aware in the [safe haven visa] interview preamble to let the delegate know if he had difficulties with the interpreter, and I note he sometimes spoke in English directly to the delegate. I am satisfied that there were sufficient opportunities for the applicant to clarify or provide more detail on the issues discussed. I do not accept that language barriers prevented meaningful communication.
(emphasis in original)
36 I note first that in his application for a safe haven visa, the appellant stated that he would need a Bengali interpreter if called for an interview. In the letter from the Department dated 1 October 2015 inviting the appellant to an interview to discuss his safe haven visa application and claims for protection, the Department stated that:
A Bengali/Bangla speaking interpreter will be present at the interview. If these details are incorrect, please contact us as soon as possible using the contact details below.
37 An internal departmental email also dated 1 October 2015 (exhibit R-1) recorded that an identified interpreter in Bengali/Bangla at the accreditation level of Paraprofessional Level 2 had been engaged to attend the interview. Bangla (which I understand is more specific term for the Bengali language) is referred to as a Tier B language at p. 45 of the Recommended National Standards for Working with Interpreters in Courts and Tribunals (JCCD, 2017) to which the Minister referred. As such, accredited or revalidated NAATI Professional and Paraprofessional Level 2 interpreters are available in Bangla. The Recommended Standards recommend that for Tier B languages, Professional level interpreters are preferred but an interpreter of lesser standard than NAATI Paraprofessional level should not be engaged (at p. 43).
38 Insofar as complaint is made of the IAA’s treatment of the appellant’s submission, no error is demonstrated. Based upon its consideration of the audio recording of the interview on which the appellant relied, the IAA rejected the submission that poor interpreting explained why the delegate (wrongly) considered that the appellant was “unable or unwilling” to describe his experiences as a BNP member to a level that the delegate reasonably expected, and therefore that a different view should be taken of his credibility by the IAA. No further evidence such as a statutory declaration by a suitably qualified interpreter as to the standard of interpreting at the hearing was relied upon. Nor were any specific errors or deficiencies in interpretation identified. Equally, to the extent to which it is said that the primary judge erred in failing to hold that the appellant was denied procedural fairness before the delegate and that this affected the validity of the IAA decision, the submission must fail for the same reasons. In other words, the appellant failed to establish an evidential basis for the generalised submission of deficient interpreting either before the delegate or the IAA.
39 Furthermore, the fact that the IAA listened to the audio recording but did not accept for rational reasons the appellant’s submission does not establish that the IAA member had a mind closed to persuasion and was therefore biased, but only that the member did not accept the submission based upon its assessment of the evidence. Mere disagreement with a finding by a decision-maker cannot of itself establish an allegation of bias or apprehended bias: see e.g. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Allegations of bias and apprehended bias are serious allegations that must be clearly established: see e.g. Picos v Servcorp Limited [2015] FCA 344 at [15] - [17] (Perry J).
40 Finally, no issue was taken before the IAA with the quality of the interpreting at the initial entry interview or in the grounds of judicial review before the Federal Circuit Court. Ground 2 of the amended grounds of judicial review before the Federal Circuit Court alleged (in part) that:
…at [safe haven visa] interview the quality of interpreting was worst. The Bengali Language Interpreter was speaking in Burmese Accent. The applicant did not understand him (Interpreter) at all and he (Interpreter) did not tell all the things to the Officer what the applicant wanted to tell.
(errors in the original)
41 While the amended application for judicial review then alleges that “[t]here was communication error. The applicant claims he was denied procedural fairness at the first stage. He was not really represented”, the alleged “communication error” identified “at the first stage” was not said to be errors in interpreting. As such, it cannot be said that the primary judge erred in failing to find such an error and in any event any such allegation on appeal went no higher than bare assertion. I also note in this regard that the IAA listened to the audio recording of the entry interview in order to consider the submission that the appellant (then unrepresented) was too frightened or traumatised to answer questions accurately (IAA reasons at [24]). In rejecting that submission, the IAA found among other things that the appellant “conversed readily with the departmental officer and at times was confident to respond directly in English…” (IAA reasons at [24]).
42 For these reasons, FCA Ground 4 must be dismissed, save for the allegations as to the appellant not being granted a hearing before the IAA which I consider below.
4.5 Alleged failure to afford the appellant a hearing (FCA Grounds 4 and 5)
43 I can deal shortly with the allegation in FCA Grounds 4 and 5 of the notice of appeal that the primary judge erred in failing to find that the IAA fell into jurisdictional error in not affording the appellant a hearing and thereby acted in breach of the rules of procedural fairness.
44 It is well established that, “[i]n the absence of a clear contrary legislative intention, those rules require a decision-maker ‘to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that [she or] he may have an opportunity of dealing with it.’”: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 311 (McHugh J) (in dissent, but in a passage approved by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [81]-[83]); see also e.g. Kioa v West (1985) 159 CLR 550 at 587 (Mason J); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [19] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25]–[32] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). This rule is known as the natural justice hearing rule.
45 The difficulty here, as the Minister contends, is that Part 7AA has in express and clear terms excluded the natural justice hearing rule, save where the Act has otherwise provided. Specifically, s 473DA of Part 7AA provides that:
(1) This Division, 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 Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
46 In this regard, ss 473GA and 473GB impose restrictions on the disclosure of information to the IAA and to the referred applicant respectively. Furthermore, while the IAA may get new information under subs 473DC(1) and (3), including by inviting a person to give the new information in writing or at an interview, the IAA has no duty to do so at the request of a referred applicant or by any other person by virtue of subs 473DC(2): AMA16 at [20] (the Court). Moreover, as earlier mentioned, the IAA is prohibited from considering new information unless the criteria in s 473DD are met: AMA16 at [21]; see further the consideration of s 473DD below at [48]-[58]. Thus, as the Full Court explained in AMA16 at [19], “the review is generally conducted on the papers and focuses on the review material provided by the Secretary to the IAA.”
47 There being therefore no provision in Part 7AA requiring the IAA to hold a hearing, it follows as a result of s 473DA that the IAA cannot have fallen into jurisdictional error in failing to do so.
4.6 A further issue raised in light of the Full Court’s decision in Minister for Immigration and Border Protection v BBS16: construction of s 473DD
48 The Full Court delivered judgment in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16) shortly before the hearing of this appeal. As a consequence, at the Minister’s request I granted leave at the hearing for the parties to be afforded the opportunity to file written submissions after the hearing addressing the relevance, if any, of that decision to this appeal. The decision in BBS16 addressed the proper construction of s 473DD of the Act which provides that:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
49 As I have explained above, s 473DD provides that the IAA “must not consider” new information unless both subs (a) and subs (b)(i) or (ii) are satisfied. Furthermore, leaving aside the complexities which arise from the language and structure of subs 473DC(1) and its dual function (definitional and operational), it suffices for present purposes to note that new information is defined by subs 473DC(1) to be information (including documents) that was not before the Minister, and that “may be relevant” to the visa applicant’s claim.
50 In BBS16, the Full Court upheld a ground in the visa applicant’s notice of contention that the IAA had fallen into jurisdictional error because it had misconstrued or misapplied the phrase “exceptional circumstances” in subs 473DD(a) of the Act by adopting an unduly narrow understanding of the test. In so holding, the Full Court followed the decision of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (BVZ16). It is convenient, therefore, to examine first the decision in BVZ16.
51 First, in BVZ16, White J held while the requirements of subs 473DD(a) and (b) are cumulative, they may also overlap. Thus, as his Honour explained:
9 … The [IAA’s] satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the [IAA’s] satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional.
(emphasis added)
52 As his Honour then clarified, that does not of course mean that the circumstances which may be exceptional in a given case are limited to those specified in subs 473DD(b)(i) and (ii) (BVZ16 at [9]).
53 Secondly, White J held that the IAA fell into jurisdictional error in considering only whether the circumstances were exceptional so as to satisfy subs 473DD(a) (BVZ16 at [36]). In other words, the IAA did not consider whether exceptional circumstances existed for the purposes of subs (a) having regard to the matters which it was required to consider under subs 473DD(b)(i) and (ii), in light of the overlap between the criteria in subs 473DD(a) and (b). It followed, his Honour held, that the IAA had failed to discharge the function of review imposed upon it by subs 473DB(1) of the Act (BVZ16 at [36]).
54 Thirdly and in any event, the IAA applied an unduly narrow interpretation of the term “exceptional circumstances” in subs 473DD(a) and as a result, failed to consider all of the matters capable of rendering the circumstances of the appellant’s case exceptional. In this regard, White J held that circumstances will be exceptional if they are “unusual” or “out of the ordinary”, a task which required a “consideration of all the relevant circumstances” (BVZ16 at [39]-[41] (emphasis added)). As his Honour further explained, read in context “exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances.” (at [43]). It followed, White J held, that the IAA had applied an unduly narrow understanding of the reach of “exceptional circumstances” in subs 473DD(a). As White J held in upholding the visa applicant’s alternative submission:
46 … counsel [for the visa applicant] presented an alternative and more confined submission, contending that there had been a constructive failure to exercise jurisdiction by the IAA. This had occurred because the IAA had confined its consideration of whether there were exceptional circumstances to the evaluation of the appellant’s explanation for not having provided the information earlier. This indicated, it was submitted, that the IAA had applied an unduly narrow interpretation of the term “exceptional circumstances”.
47 In my opinion, there is force in that submission. The IAA member does seem to have reasoned that her rejection of the appellant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. This seems to reflect an inappropriately narrow understanding of the reach of the term “exceptional circumstances”, as discussed earlier in these reasons.
55 The Full Court in BBS16, as I have said, approved White J’s construction of s 473DD at [102]-[106] and held that the IAA had similarly fallen into jurisdictional error in that case. Specifically the Court held that:
111 … the IAA’s conclusion that it was not satisfied that there were exceptional circumstances to justify considering this new information was based on the IAA’s finding that the first respondent had not provided any explanation as to why the information could not have been provided earlier… Thus the IAA described the numerous opportunities which the first respondent had earlier in the process to provide the information, his knowledge about the limitations of providing new information and the fact that he had not previously raised any of the new information notwithstanding that it related to events which occurred prior to the delegate’s decision on 17 February 2016. In addition, it is notable that the IAA made no reference at all to the material which explained why the first respondent had not previously disclosed his affiliation with AFLA, notwithstanding that this was a relevant matter to be taken into account in assessing whether there were exceptional circumstances for the purposes of s 473DD.
112 For these reasons, we consider that the IAA made a similar error to that which was identified in BVZ16. Instead of addressing other matters which were potentially relevant to the issue of “exceptional circumstances”, including the first respondent’s explanation as to why he had not previously disclosed his affiliation with AFLA, the IAA reasoned that, because the referred applicant had not provided any explanation as to why the new information could not have been provided earlier, the IAA was not satisfied that there were exceptional circumstances. That reflects a misconstruction and misapplication of s 473DD.
56 There is no ground of appeal in this case raising the issues considered in BVZ16 and BBS16. Nor did the appellant put an argument that the IAA had fallen into error for like reasons to those in BVZ16 and BBS16. Rather, in his post-hearing submissions the appellant took issue with the justice and fairness of s 473DC (and I infer s 473DD) in having “been designed to deprive the Appellant from their right to be hear and fair representation” (errors in original). However, the fact that a law may operate harshly or in a manner regarded as unfair does not provide a ground for judicial review.
57 These matters notwithstanding, as the Minister properly pointed out, in this case the IAA declined to have regard to certain information provided to it by the appellant which had not been before the delegate. The question of whether the IAA correctly considered whether that information was new information for the purposes of ss 473DC and 473DD of the Act was therefore potentially raised. Specifically, the IAA had regard to a submission provided to it by the appellant’s representative (the IAA submission) insofar as it contained arguments responding to the delegate’s decision and reasserted claims made before the delegate, finding that this information did not constitute new information as defined in subs 473DC(1) of the Act (IAA reasons at [4]). However the IAA did not have regard to the references to country information reports which were in the IAA submission or to documents attached to the IAA submission, for the following reasons:
5. The submission also included references to country information reports which were not before the delegate and which constitute ‘new information’. These reports pre-date the delegate’s decision and no explanation has been provided as to why this information was not and could not have been provided to the delegate or why it may be considered credible personal information. I am not satisfied s 473DD(b) is met. Nor am I satisfied there are exceptional circumstances to justify considering this new information.
6. Attached to the submission was documentary evidence that the applicant’s mother received medical treatment in India … and that his brother is working in Malaysia. These documents were not before the delegate and no explanation has been provided as to why these documents could not have been provided earlier. I am not satisfied s 473DD(b) is met. Nor am I satisfied there are exceptional circumstances to justify their consideration.
58 Unlike the decisions, therefore, in BVZ16 and BBS16, in this case the IAA expressly considered whether the new information met the criteria in subs 473DD(b) and found that it did not. The IAA was therefore precluded from taking the information into account by operation of s 473DD. It was therefore strictly unnecessary for the IAA to consider whether there were exceptional circumstances so as to satisfy the criterion in subs 473DD(a), which presumably explains the brevity of the IAA’s consideration of this issue.
4.7 The Minister’s notice of contention
59 Given that the appeal must be dismissed in any event, it is unnecessary for me to consider the issues raised in the Minister’s notice of contention. I note however that there is considerable force in the proposition that the primary judge erred at [36]-[37] of his reasons (quoted above at [17]) insofar as his Honour appeared to assume that the IAA was under an obligation under Part 7AA to invite submissions and the provision of new information. Section 473DA and subs 473DC(2) would seem to operate to exclude the possibility that such an obligation could have arisen for the reasons I have earlier given (see above at [45]-[46]). This does not, however, mean that the IAA requires express statutory authority to write to an applicant advising that her or his application has been referred to it for review. To the extent that a submission to this effect was initially suggested by counsel for the Minister, he rightly did not press it. The IAA’s practice in line with the Practice Direction of issuing such correspondence, inviting submissions and advising of the exceptional capacity to consider new information constitutes, at the very least, good administrative practice capable of enhancing the quality of IAA decisions: see also e.g. DBE16 at [65] (Barker J).
60 For these reasons the appeal must be dismissed with the appellant to pay the first respondent’s costs of the appeal.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
