FEDERAL COURT OF AUSTRALIA

BUU18 v Minister for Home Affairs [2019] FCA 457

ORDERS

THE COURT ORDERS THAT:

1.     The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

PERRAM J:

1    This is an appeal from orders made by the Federal Circuit Court on 9 August 2018: BUU18 v Minister for Home Affairs [2018] FCCA 2174. That Court dismissed the Appellant’s application for judicial review of a decision by the Immigration Assessment Authority (‘the Authority’) on 20 March 2018 to affirm a decision of a delegate of the Minister not to issue the Appellant a safe haven enterprise (subclass 790) visa (‘SHEV’).

2    The Appellant is a citizen of Bangladesh and is of Bengali ethnicity. In 2012 he travelled from Bangladesh to Australia via, variously, Burma, Thailand, Malaysia and Indonesia. He did so in circumstances which were illegal under the law of Bangladesh. After entering Australian waters on 2 January 2013 the Appellant was transferred first to Christmas Island and thereafter to the Wickham Point Immigration Detention Centre in Darwin. Whilst there, on 20 January 2013, he was interviewed by officials of the Department of Immigration and Citizenship.

3    As the Appellant was an unauthorised maritime arrival, he was barred by s 46A of the Migration Act 1958 (Cth) (‘the Act’) from applying for a visa while he remained in Australia unless the Minister determined that he could. On 9 May 2016, the Minister exercised that discretion under s 46A(2) of the Act and invited him to apply for a temporary protection (subclass 785) visa or a SHEV. On 18 June 2016, the Appellant lodged with the Minister an application for a SHEV. On 27 September 2017 he was interviewed by a delegate of the Minister. On 25 January 2018 a delegate refused his application and on 20 March 2018 the Authority affirmed that decision.

4    The case before the delegate and the Authority was that the Appellant claimed to fear harm from the Awami League (‘AL’) due to his support of the Bangladesh National Party (‘BNP’) between 2007 and his departure from Bangladesh in 2012. In affirming the decision under review, the Authority reached broadly similar conclusions to that of the delegate. The Authority accepted that in 2007 the Appellant attended many BNP activities and one AL rally and that he was paid to do so to bolster attendance rather than having attended out of strong personal interest or commitment to either party. The Authority also accepted that the Appellant may have voluntarily joined in BNP activities in late 2008 prior to the national election but did not accept that he was an active BNP supporter after that time, nor that he participated in any BNP activities between 2009 and his departure from Bangladesh in 2012. Whilst the Authority accepted that the Appellant had recently taken an interest in the BNP Australia branch it was not satisfied that his interest in the BNP in Bangladesh was prompted by any strong affiliation with its ideologies or a personal interest in politics.

5    The Authority accepted that the Appellant may have approached an agent to arrange for him to travel to Italy who then stole his money, that he may have attempted to secure the return of his money and that he may have been assaulted as a warning to cease pursuit of the matter. However, the Authority did not accept that the agent was an AL leader, that the Appellant was harassed by the AL or that his issues with the BNP and AL were the reasons for him seeking to leave Bangladesh.

6    The Authority accepted that the Appellant may have attempted to report the assault to the police who refused to file any case without payment and that the agent may himself have paid a bribe to the police, but did not accept that the agent would have asked the police not to file a case against AL supporters or himself as an AL leader. The Authority did not accept that the Appellant went into hiding after the 2008 election, that the AL attempted to assault him in 2011 or that a false case was lodged against him in 2012.

7    Nor did the Authority accept any of the Appellant’s claims that the AL attacked or threatened members of his family in 2011, that his brothers were in any way active with the BNP, or that they travelled to Malaysia due to harassment flowing from their or the Appellant’s support of the BNP. The Authority did not accept that the Appellant was recognised in Dhaka by political party members from his village or that he was of any interest to the agent or the AL prior to his departure in 2012.

8    The Authority was not satisfied that there was a real chance of the Appellant suffering any harm from the AL or police nor any penalties including detention or imprisonment on return to Bangladesh after having departed illegally. The Authority was also not satisfied that the Appellant would be politically active beyond mere political support on return to Bangladesh.

9    Consequently, the Authority found that the Appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and did not meet the refugee criterion in s 36(2)(a) of the Act. The Authority also found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the Appellant being returned to Bangladesh, there was a real risk that the Appellant would suffer significant harm. The Authority found that he accordingly did not meet the complementary protection criterion under s 36(2)(aa) of the Act.

10    In the Federal Circuit Court, the Appellant sought constitutional writ relief in respect of the Authority’s decision. The Appellant advanced one ground of review which did not identify specific legal error and instead indicated that the Appellant intended to engage a lawyer after the court book was produced. The primary judge found that, on the face of the material before the Court, the Authority made dispositive findings in respect of the claims that were open to the Authority for the reasons it gave: at [19]. The primary judge then considered whether the Authority’s refusal to extend time to permit the Appellant to make a further submission constituted a jurisdictional error. The primary judge found that the Authority’s exercise of power took into account the relevant practice direction issued under s 473FB of the Act, and did not otherwise lack an evident and intelligible justification: at [22]. Consequently, the primary judge found no error and dismissed the application.

11    In this Court, the Appellant advanced three grounds of appeal. First, the primary judge did not follow the proper procedure and applicable law. Secondly, the Appellant was denied procedural fairness by the dismissal order of the Federal Circuit Court. Thirdly, the primary judge’s dismissal order was an improper exercise of the power conferred by the enactment and applicable law.

12    Each of these grounds is pitched at such a high level of generality that they are meaningless and hence impossible to assess. None discloses a viable ground of appeal as they are framed. However, the Appellant also made a written submission which was 34 paragraphs in length. Its contents may be distilled to the following four contentions:

(a)    The Authority had failed to consider whether the Appellant would suffer harm at the hands of the Awami League if returned to Bangladesh. I do not accept this is factually correct. The Authority examined his claims that he would suffer such harm at [29]-[32] concluding that it ‘was not satisfied there is a real chance of him suffering harm on return to Bangladesh from AL’.

(b)    The Authority failed to inquire into whether root-level BNP activists and leaders were subject to persecution. Again, this is not factually correct. The Authority considered this issue at [31] in some detail. It accepted that there was political violence between the Awami League and the BNP and that BNP supporters were affected by political violence.

(c)    The Federal Circuit Court dismissed the judicial review action without affording the Appellant an opportunity to provide more information or amend his application. However, it is unclear what this information was. Further, there is no evidence that the Appellant sought to amend his application.

(d)    The Authority failed to assess an integer of the Appellant’s claim. However, the integer was not identified.

13    In addition to these submissions, the Appellant also submitted that the Authority had denied him procedural fairness by refusing to extend the deadline for him to make a submission. The facts about this are this are as follows. On 2 February 2018 the Minister referred to the Authority the delegate’s decision to refuse the Appellant the SHEV. Section 473FB of the Act authorises the Authority to issue practice directions. Such a direction was made on 6 February 2017 (‘the Practice Direction’). Clauses 20-22 of the Practice Direction provide:

20.    For the purposes of the review, you may provide a written submission on the following:

•    why you disagree with the decision of the Department

•    any claim or matter that you presented to the Department that was overlooked.

21.    Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should:

•    be no longer than 5 pages,

•    be easily legible using a font size of at least 11 point with standard margins of at least 2.54cm, and

•    should be provided to us within 21 days of your case being referred to us by the Department.

22.    We may return longer submissions or submissions that do not comply with these requirements. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

14    Under the direction the Appellant was therefore obliged to put in his submission by 23 February 2018. Inside that timeframe, on 14 February 2018, he sent an email to the Authority the substance of which was his contention that he would be in grave danger if returned to Bangladesh. After the deadline had expired, on 2 March 2018, the Appellant again emailed the Authority in the following terms:

Dear Sir or Madam

I note on the letter the referral to the IAA was on the 2nd February 2018 and I need to reply within 21 days this being 23rd February.

I would be grateful if IAA would grant me an extension of time based on the information below:

1.    I am looking for legal assistance to help with my review

2.    I am unable to afford a paid migration lawyer so I am seek free legal advice

3.    My previous legal advisor who I paid for assistance has since had his licence suspended

4.    I understand this extension would be inconvenient to the IAA however I feel an extension would lead to a more just and fair assessment of my review.

Would you please email me direct if an extension is granted.

Regards

15    The Authority responded the same day:

I refer to your correspondence of 02 March 2018 requesting additional time to make a submission.

Your request has been considered, but not granted in this case. Under the Practice Direction for Applicants, Representatives and Authorised Recipients, submissions should be given to the IAA within 21 days of the date on which the case was referred to us by the Department of Immigration and Border Protection. As the case was referred on 02 February 2018, this 21 day period ended on 23 February 2018 and the IAA is not satisfied that the circumstances warrant extending the time in this case.

16    There are circumstances in which the denial of adjournment may constitute a denial of procedural fairness: Sullivan v Department of Transport [1978] FCA 48; 20 ALR 323 at 343 per Deane J. However, that style of reasoning is inapplicable to reviews conducted under Pt 7AA of the Act because of s 473DA which provides that the provisions under which the Authority conducts its review are ‘an exhaustive statement of the requirements of the natural justice hearing rule’. On the other hand, it is accepted that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (‘Li’): see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 (‘Plaintiff M174’) at 607 [21] per Gageler, Keane and Nettle JJ.

17    That brings into view the power which the Authority was exercising. Part 7AA does not contain any provision which permits it to receive submissions although detailed provision is made for the receipt of ‘new information’: see ss 473DC-473DF. However, information in the context of Pt 7AA is limited to information ‘in the ordinary sense of a communication of knowledge about some particular fact, subject or event’: Plaintiff M174 at 608 [24]. It is a mistake to erect a strict dichotomy between submissions and information for the two concepts will often overlap at least to the extent that many submissions do in fact contain information. On the other hand, material which is purely argumentative is unlikely itself to be information. It is, therefore, impossible in a vacuum to say whether the receipt by the Authority of a submission is, or is not, authorised by s 473DC. It is only once the precise nature of what is to be submitted comes into view that it will be possible to say whether its receipt can be brought within ss 473DC-473DF.

18    An example of this is afforded by Minister for Immigration and Border Protection v CRY16 [2017] FCA 210; 253 FCR 475. In that case, the Authority decided the review against the Applicant on a basis which had not been considered by the delegate. This was that the Applicant could relocate within Lebanon and thereby avoid persecution. However, an aspect of that inquiry devolved on the applicant’s personal circumstances. The Full Court reasoned that the applicant could reasonably be expected to have information about his personal circumstances and that the Authority had unreasonably failed to consider exercising the power in s 473DC to obtain new information from the Appellant. The Full Court did not characterise this as a submission but it is certainly possible to see what was proposed as involving not only new information but also a submission. The point for present purposes is that merely assigning to a document the quality of being a submission does not necessarily entail that some part of it might not also involve new information under s 473DC.

19    In this case, it is not known whether the submission the Appellant would ultimately seek to make contains new information. Consequently, it is not possible to say at this stage that the Authority’s power to receive the submission comes from s 473DC.

20    The Full Court of this Court has held that cl 21 of the Practice Direction authorises the Authority to receive a submission: Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 at [38]-[56] per Flick, Griffiths and Perry JJ. Although there may be a technical question as to whether a single judge exercising the appellate jurisdiction is bound by a Full Court decision exercising appellate jurisdiction, I do not think it would be appropriate to depart from what the Full Court has said. That said, the Full Court’s reasons proceed on the assumption that the Authority’s powers are extensive unless proscribed rather than non-existent unless prescribed (cf Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 at 447: ‘nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court’).

21    Where Pt 7AA contains no provisions dealing with ability of an applicant to make a submission (contra ss 423 and 425 of the Act for reviews conducted under Pt 7 of the Act) and s 473DA makes the regime an exhaustive statement of what procedural fairness requires, I entertain considerable doubt as to whether the Practice Direction can add to the procedures contained in Pt 7AA itself. Further, given that legal unreasonableness is not a freestanding concept but rather an implication of legislative intention (Li at 362 [63]), it is unclear against which statutory discretionary power the reasonableness of refusing to receive submissions purportedly out of time is to be assessed.

22    Notwithstanding these reservations, cl 22 appears to contain an assumption that the Authority may extend the 21 day deadline in cl 21. Assuming that an assumption in a clause in a practice direction can be a source of statutory authority, I do not think it can be said that the refusal in this case was unreasonable or irrational in the relevant sense. One can imagine perfectly sensible reasons why a decision maker in the position of the Authority might have refused to extend the time. Consequently, one cannot say that the decision to do so is unreasonable on its face. Nor can I discern in the refusal some process of reasoning which defies comprehension. This argument therefore fails.

23    The appeal will be dismissed with costs.

Associate:

Dated:    5 April 2019