FEDERAL COURT OF AUSTRALIA

CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The notice of contention is upheld.

3.    The appellant is to pay the first respondent's costs, 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

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the Minister's delegate's decision to refuse to grant the appellant a safe haven enterprise visa (SHEV): CRJ17 v Minister for Immigration and Border Protection [2017] FCCA 2725.

Background

2    The appellant, who claims to be a stateless person, was born in Burma (Myanmar) and lived most of his life in Bangladesh.

3    He arrived on Christmas Island as an unauthorised maritime arrival on 30 January 2013. On 26 April 2016, the appellant lodged an application for a SHEV. He attended an interview with the delegate.

4    On 14 November 2016, the delegate refused the grant of the visa, and found that the appellant was a citizen of Bangladesh.

5    Pursuant to s 473CA of the Migration Act 1958 (Cth) (Act), on 23 November 2016 the decision was referred to the Authority for review under Pt 7AA of the Act. The Authority received material referred by the Secretary under s 473CB of the Act including a certificate issued under s 473GB(5) of the Act.

6    On 24 November 2016 the Authority wrote to the appellant informing him of the review and informing him that new information could only be considered in limited circumstances.

7    On 4 December 2016 and 15 December 2016, the appellant provided material comprising a submission and other documents to the Authority by email.

8    On 12 May 2017 the Authority decided to affirm the decision of the delegate not to grant the appellant a SHEV.

9    The appellant applied to the Federal Circuit Court for judicial review of the Authority's decision and that application was dismissed.

10    The appellant now appeals from the decision of the Federal Circuit Court.

The protection claims

11    The protection claims made in the appellant's SHEV application and considered by the delegate and the Authority can be summarised as follows:

(a)    the appellant is a stateless ethnic Rohingya, born in Myanmar;

(b)    his parents moved to Bangladesh when he was two years old because of the violent targeting of Rohingyas by Myanmar government forces;

(c)    he claims he is illiterate and was not able to obtain identification documents from Bangladesh;

(d)    he resided unlawfully as a stateless person in Bangladesh until 2007, when he travelled to Malaysia using a passport which was fraudulently altered by inserting his photograph;

(e)    he resided unlawfully as a stateless person in Malaysia until 2012, when he commenced his travel to Australia. In 2009 and while he was in Malaysia he obtained a UNHCR card, and this expired in 2012;

(f)    he fears being killed if he returns to Bangladesh as he would be returned to Myanmar due to his lack of citizenship or residency rights;

(g)    he fears being returned to Malaysia because he would be imprisoned or extorted due to his lack of citizenship or residency rights.

Before the Authority

New Information

12    The Authority had regard to the information referred to it by the Secretary under s 473CB of the Act, and also had regard to the appellant's submission received on 5 December 2016. The submission included documents that were before the delegate and did not constitute new information. According to the record of the delegate's decision, documents before it included a letter purportedly issued by the UNHCR in Malaysia, a handwritten letter in Burmese purporting to be a testimonial of the 'Committee of Gufuphalong Ahthit Refugee Camp' and a copy of a Myanmar Temporary Registration Card (or white card). The Authority was also satisfied that a Bahas language letter from the Malaysian Rohingyan Society (untranslated) was before the delegate.

13    However, the email of 15 December 2016 also attached new information. Under Pt 7AA new information can only be considered in restricted circumstances. The terms of s 473DC and s 473DD are relevant:

[s 473DC] Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant16 or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

[s 473DD] Considering new information in exceptional circumstances

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.

14    The relevant new letter purported to have been issued by the 'Administrators of the Rohingya Education Development Society' on 11 December 2016 and stated that the appellant had received care and medication from the camp for three years and was a brilliant student. The Authority was satisfied that the letter constituted 'new information'. The Authority found that the new information was inconsistent with information provided previously by the appellant and did not consider it comprised credible personal information. It was not satisfied that the letter met the requirements of s 473DD(b) of the Act, and therefore it did not consider that letter as part of its determination.

Authority's reasons

15    Whilst it accepted parts of the appellant's claims, the Authority found there were many doubts raised by his otherwise inconsistent and unconvincing evidence. The Authority recorded the following:

(a)    the appellant claimed to have been married to a woman, Ms K, in Bangladesh and lived with her for two years and had two children. He said his wife and children reside in Bangladesh. In his SHEV application he said he spoke to his wife weekly. The Authority found the lack of engagement with his wife's parents or firm knowledge of his wife's citizenship status to be unconvincing;

(b)    the Authority was not persuaded that the appellant was unaware of the extent to which his 15 year old son had, or had not, been attending school;

(c)    the Authority accepted the appellant flew to Malaysia in 2007 and remained there until he departed in 2012;

(d)    the appellant gave inconsistent evidence in relation to obtaining loans from people he claimed to have no contact with (such as his wife's parents) and this raised doubts in relation to his overall credibility;

(e)    when questioned about his temporary registration card, the appellant claimed he was smuggled into Burma in 1997 or 1998 for a period of less than some two days, and secured the card while he was there. Having regard to country information, the Authority considered it was implausible that the appellant would have been freely issued a temporary registration card in the space of hours. Further, during his entry interview the appellant had not mentioned possessing a temporary registration card despite being asked for identity documents. Credible sources report that there is a well-known level of fraud with respect to trading and duplicating temporary registration cards. Accordingly the Authority gave no weight to the Myanmar temporary registration card as evidence of the appellant's claims;

(f)    the Authority gave no weight to the letter purportedly issued by the committee members of Gufuphalong Refugee Camp as evidence of the appellant's claims, taking into account its dates conflicted with information given by the appellant, and that the appellant's claim that he went to the camp regularly to help was implausible, considering the camp was some five or six hours from where he said he was living;

(g)    the Authority took into account and accepted letters of 6 June 2016 and 7 June 2016 issued by the Islamic Council of Queensland and the Imam of the Holland Park mosque supporting the appellant's claim to be Muslim;

(h)    although the appellant produced a letter from his employer ABD Poultry that stated the appellant was a Muslim Rohingya refugee, the Authority noted it was evidence only of what the appellant had told his employer;

(i)    the Authority was prepared to accept that the UNHCR letter was authentic and was evidence that the appellant had registered with the UNHCR in Malaysia and claimed to be an asylum seeker from Myanmar;

(j)    it gave no weight to the document purportedly issued by the Rohingya Society in Malaysia because although the document appears to be dated 21 August 2010, the appellant gave no explanation as to why the document was not provided to the Department as evidence of identity. Further, the Authority had concerns about the ease with which such documents are forged and had overall doubts about the documentation provided by the appellant;

(k)    the Authority rejected the appellant's claim that he departed Bangladesh on a fraudulent passport and found that he departed Bangladesh lawfully on his own genuine Bangladesh passport;

(l)    the appellant's religious beliefs, physical appearance and ability to understand Rohingya interpreters indicated that he was either an ethnic Rohingya or a member of Bangladesh's Chittagong ethnic Bengali community;

(m)    as there was no means to verify credibility, the Authority chose not to obtain information from nor give any weight to the appellant's invitation that it contact four persons from the Rohingya community to verify his claims.

16    The Authority did not accept that the appellant was stateless or a Rohingya and found that he was an ethnic Bengali from Chittagong in Bangladesh. It considered its doubts about the appellant's inconsistent and unconvincing evidence (summarised above) were not overcome by the consistency of the appellant's claim to be a stateless ethnic Rohingya. The Authority considered his evidence severely undermined his credibility.

17    Given its factual findings that the appellant was not stateless or Rohingya, and given the overall situation in Bangladesh and that he is a member of Bangladesh's overwhelmingly predominant Sunni Muslim ethnic Bengali population and that he departed the country legally on his own passport, the Authority was not satisfied that the appellant would face a real chance of harm 'of any kind for any reason' if returned to Bangladesh. Therefore, it was not satisfied that the appellant would face a real chance of serious harm and concluded that the appellant does not meet the definition of a refugee in s 5H(1) of the Act.

18    For the same reasons, the Authority was not satisfied that the appellant would face a real risk of significant harm of any kind if he returned to Bangladesh, and accordingly was not satisfied that Australia owed the appellant complementary protection.

Before the Federal Circuit Court

19    The appellant relied on the following three grounds of review:

1.    The authority said I am Bangladeshi but I am a citizen of Burma.

2.    I am a stateless person.

3.    The authority has massively [mis]understood the gravity of my situations.

20    The primary judge was required to address those grounds but also to consider a number of certificates and documents that the appellant handed up on the day of the hearing. The primary judge admitted them into evidence subject to relevance. The documents fell into three groups: documents already before the Authority; documents that were not before the Authority; and documents that were not before the Authority and that also related to the appellant's alleged conversion to Christianity and his divorce, matters which he claimed led him to fear his wife's family.

21    In his ex tempore reasons, the primary judge determined that material that was not before the Authority cannot establish jurisdictional error and is irrelevant. Further, as to the new documents said to identify his conversion to Christianity and divorce, fear of his wife's family was not a claim made previously and so could not give rise to any jurisdictional error

22    I have examined the documents. They are as follows:

(a)    further copy of the untranslated Rohingya Society in Malaysia letter of 20 August 2011;

(b)    copy Notarial Certificate of a Bangladeshi notary dated 19 July 2016 that appears to lack any relevant content;

(c)    further copy of the 'Attestation Letter' from the Rohingya Education Development Society dated 11 December 2016;

(d)    copy 'attestation certificate' from a teacher at the Kutupalong Refugee Camp in Cox's Bazar, Bangladesh claiming that the appellant had stayed at the camp dated 2 February 2017;

(e)    copy 'attestation certificate' from the Arakani Rohigya [sic] Refugee Welfare Association stating the appellant lived at Kutupalong camp between 2003 and 2007 dated 14 February 2017;

(f)    copy various Baptism, First Communion and Church membership documents dated 17 February 2017;

(g)    copy letter to the appellant from the Assistant Anglican Bishop for Perth congratulating him on his Baptism dated 1 June 2017;

(h)    copy 'final divorce' dated 5 July 2016;

(i)    copy letter from the Priest in Charge at the Yongah Hill Immigration Detention Centre in support of the appellant's application dated 15 September 2017.

23    Those documents listed at (a) and (c) were before the Authority (and in the case of the document at (c), not admitted, the Authority having considered s 473DD). Otherwise, there was no evidence the documents were before the Authority.

24    The primary judge found that the appellant's written and oral submissions and grounds one to three sought impermissible merits review and did not establish any jurisdictional error.

25    The primary judge found that ground one was, in substance, a repetition of the appellant's claims, and that the Authority had provided orthodox reasons in support of the adverse credibility findings which were open on the material before it.

26    As to ground two, the primary judge found that there was no misunderstanding of the appellant's claims and evidence on the part of the Authority and that the adverse findings in relation to his credit were open.

27    The primary judge found that the Authority had complied with its statutory obligations in the conduct of the review and that there was no basis for inferring that it failed to take into account 'the whole of the provisions of s 473DD of the Act' or failed to comply with its obligations of procedural fairness. The primary judge said that the Authority complied with the requirements of procedural fairness in the conduct of the review by sending to the appellant the letter inviting the appellant to put on submissions and new information and in its evaluation of that material.

28    The primary judge dismissed the application for review with costs.

The notice of appeal

29    The notice of appeal advances two grounds of appeal:

1.    The Authority failed to adequately consider the appellant's claim for a Safe Haven Enterprise visa and believe that the Authority failed to identify that the appellant is Stateless and therefore a refugee under the Migration Act.

2.    The Authority failed to take into regard further supporting documents that were sent to the Federal Circuit Court before making their decision.

30    The appellant is self-represented and it is fair to say that the grounds of appeal reflect the difficult task faced by such appellants in drafting grounds where the real complaint is that the primary judge failed to find jurisdictional error on the part of the Authority. While this Court may be called upon to form its own view as to what transpired before the Authority, this may only be done in the context of the need to find error on the part of the primary judge: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [15] (Bromwich J); and the recent consideration of the issue by the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.

31    In this case, resolution of the appeal requires consideration of the primary judge's reasons in the context of:

(a)    an examination of the Authority's reasons for rejecting the appellant's claim that he is stateless in order to ascertain whether error is disclosed;

(b)    consideration of the limited circumstances in which the Authority could receive new evidence in a Pt 7AA review; and

(c)    consideration of whether the primary judge properly addressed the issue of procedural fairness.

Rejection of claim that appellant stateless

32    The grounds of appeal do not disclose any jurisdictional error on the part of the Authority or appellable error by the primary judge. The Minister submits that the appellant's assertion that the Authority failed to 'adequately consider' his claims is mere disagreement with the Authority's findings. The Authority's findings in relation to the appellant's claims were open to it and, therefore, the primary judge's finding that no jurisdictional error could be established was correct.

33    Having considered the reasons of the Authority, I have not discerned jurisdictional error. The Authority carefully considered each aspect of the evidence that the appellant sought to rely upon and noted inconsistencies. Where the Authority did not accept that documents were credible evidence or found that aspects of the evidence were implausible, it gave reasons that support its conclusion. The grounds of review before the Federal Circuit Court (and the first ground of appeal before this Court) invite impermissible merits review.

New information

34    To the extent that the ground alleges that the primary judge failed to consider the documents and submissions tendered at the hearing in the Federal Circuit Court, the contention is not established. Based on the reasons, the primary judge had regard to the documents tendered, as well as the appellant's written and oral submissions. However, it was not for the primary judge on an application for judicial review to re-assess the merits of the appellant's claim having regard to documents that were never before the Authority when it exercised its powers under Pt 7AA.

35    The Authority was obliged to make the correct and preferable decision on the evidence at the date of its decision and taking into account the provisions of Pt 7AA that proscribe the manner of its review.

36    The scheme of Pt 7AA is that, except in limited circumstances, the Authority must review de novo a fast track decision referred to it on the papers, those papers being the review material provided to it by the Secretary of the Department, and conduct that review without accepting or requesting new information or interviewing the referred applicant. In this case, it is the terms of s 473DD that are important (as summarised in BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [31] (Flick, Markovic and Banks-Smith JJ)).

37    However, with respect to the new evidence that the appellant sought to provide to the Authority, it was necessary for the primary judge to consider whether the Authority had properly applied the provisions of s 473DD of the Act.

38    Much has been written recently on the correct application of s 473DD: see, for example, the recent exposition of the case law by Derrington J in CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317, citing in particular Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 (McKerracher, Murphy and Davies JJ) and BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 (White J).

39    Although there is some authority for the view that it is not necessary for the Authority to give reasons for not accepting new information (CVS16 at [25]-[30]; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 (Thawley J)), the Authority in this case gave reasons for not accepting the new information provided by the appellant under s 473DD.

40    It first set out a list of inconsistencies. It then said as follows:

Given these inconsistencies, I am not satisfied that the 11 December 2012 [sic - 2016] letter can be considered credible personal information. The letter purports to have been issued after the date of the delegate's decision, and its contents imply that the authors have only recently become aware of the applicant's circumstances; stating that they had been looking for him everywhere but that they had suddenly heard he was in jail for three years (the applicant has been in immigration detention) and that they request his release. However, given that the applicant had previously provided a letter purporting to attest to his being known to committee members associated with the Kutupalong Refugee Camp, I am not satisfied of the credibility of this claim or of the letter itself, or that such a document could not have been obtained, and provided, to the delegate prior to the date of the delegate's decision. I am therefore not satisfied that s 473DD(b) is met.

41    The Authority did not refer to s 473DD(a) but that is explicable on the basis that in this case it found that neither limb of s 473DD(b) was met. The grounds are cumulative, and as the Authority was not satisfied as to s 473DD(b), in this case that finding was enough to trigger the prohibition in s 473DD: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [32]-[34] (Mortimer J).

42    This is not a case, such as that in CIH16, where it was necessary to examine the meaning of 'exceptional circumstances'.

43    As to the new evidence which the appellant did not seek to provide to the Authority, there is no error. The Authority was not obliged to request or obtain new information.

44    The primary judge's reasons were brief on the question of s 473DD. The primary judge noted that there was no basis for inferring that the whole of the provisions in s 473DD of the Act were not considered by the Authority. So much may be accepted in that the Authority has identified, in my view, the relevant parts of s 473DD and applied them. To the extent that the primary judge then states that there is no basis for finding that the Authority adopted an erroneously narrow meaning of 'exceptional circumstances', such statement appears superfluous as the Authority did not determine that receipt of the documents was prohibited by way of consideration of s 473DD(a). However, in the end I am not persuaded that the primary judge erred in finding that the Authority did not err in its application of s 473DD.

45    Therefore, no jurisdictional error on the part of the Authority has been established. It follows that the primary judge's decision on the grounds before him was correct.

Notice of contention

46    There is, however, a difficulty with the manner in which the primary judge raised the requirement of procedural fairness. The Minister seeks leave to rely on a notice of contention in this regard. The notice of contention was filed late but some four months prior to the hearing. The notice of contention raises issues clearly the subject of the submissions before the Federal Circuit Court and this Court relating to the issue of new documents. Taking into account the interests of the proper administration of justice, I will extend the time for the filing of the notice: SZMTJ v Minister For Immigration and Citizenship (No 2) [2009] FCA 486; (2009) 232 FCR 282 at [14]-[19] (Flick J).

47    The primary judge stated that:

… the [Authority] complied with the requirements of procedural fairness in the conduct of the review by sending a letter providing the appellant with an opportunity to put on submissions and provide new information.

48    This finding was not consistent with the statutory scheme.

49    Section 473DA provides that Division 3 of Pt 7AA, with s 473GA and s 473GB 'is taken to be an exhaustive statement of the requirements of the natural justice hearing rule'. A consequence of this is that, by contrast with reviews under Pt 7 and Pt 5 of the Act, there is no procedural fairness obligation to put dispositive matters to an applicant or to alert an applicant that a matter might be decided on a different basis from how the matter was determined by the delegate. The principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 do not apply to reviews under Pt 7AA of the Act: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [59] (Barker J). The Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (Reeves, Robertson and Rangiah JJ) said at [75]:

There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.

50    In this case, the appellant made no assertion before the primary judge of a breach of procedural fairness and identified no obligation in Division 3 of Pt 7AA of the Act that the Authority had breached. Regardless, the Authority was not required to afford the appellant an opportunity to provide new information or put submissions to it or to otherwise send a letter inviting the appellant to do so: COA16 v Minister for Immigration and Border Protection [2018] FCA 475 at [37]-[38] (Rares J).

51    The Authority did in fact write to the appellant and informed him of the statutory provisions as to the receipt of new information. The Minister's point is that the primary judge's statement in his reasons should not be taken as any authority that the Authority was obliged to do so and that a failure to do so would have denied the appellant procedural fairness. I accept the Minister's submission. Having addressed the issue of procedural fairness, the primary judge ought to have found that s 473DA addresses the natural justice rule in the context of reviews by the Authority and that the Authority in this case was obliged only to comply with and did comply with the requirements of Division 3 of Pt 7AA with respect to its treatment of purported additional information.

Determination

52    For those reasons the Minister's notice of contention is upheld and the appeal is dismissed.

Associate:

Dated:    13 September 2018