FEDERAL COURT OF AUSTRALIA

FHM17 v Minister for Immigration and Border Protection [2019] FCA 1072

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant in the present proceeding, identified by the pseudonym FHM17, was born in Bangladesh in 1982.

2    He arrived in Australia on 24 March 2013 as an unauthorised maritime arrival.

3    On 14 May 2016, he applied for a Safe Haven Enterprise visa. That application was refused by a delegate of the Minister on 10 February 2017.

4    This decision was then referred to the Immigration Assessment Authority (the “Authority”). The Authority acknowledged receipt of the referral on 16 February 2017 and, in doing so, further advised the Appellant of what he “need[ed] to know about the Immigration Assessment Authority”. On 27 February 2017, the Appellant forwarded to the Authority a submission. On 16 November 2017, the Authority affirmed the decision not to grant a Safe Haven Enterprise visa.

5    In December 2017, an application was filed in the Federal Circuit Court of Australia seeking review of the Authority’s decision. Before that Court, the now-Appellant relied on 10 Grounds of Review. It would appear that these Grounds were drafted by the Appellant personally. In November 2018, a Judge of that Court dismissed the application: FHM17 v Minister for Immigration & Border Protection [2018] FCCA 3651.

6    A Notice of Appeal was then filed in this Court. That Notice of Appeal was prepared by the Appellant’s solicitor and set forth the following two Grounds of Appeal (without alteration):

Ground 1:    The IAA misconstrued Section473DC and 473DD of the Migration Act 1958(Cth)

Particulars:

The IAA has misconstrued section 473DC and 473DD by failing to provide the Applicant with an opportunity to satisfy the Authority that “new information” provided by the applicant and as determined by the Assessor meets the criteria as enumerated in Section 473DD(b)(i) and (ii).

Ground 2    The applicant denied procedural fairness

Particulars:

The applicant was self represented in the Federal Circuit Court of Australia and unable to plead grounds properly. The applicant alleged in this grounds that there is breach of procedural fairness in assessing his claims by the IAA.

7    Prior to the hearing of the appeal in this Court, the Appellant’s solicitor advised that the Appellant had “terminated” his services. On the hearing of the appeal, the Appellant appeared on his own behalf, with the assistance of an interpreter. The Respondent Minister was represented by his solicitor. The Second Respondent filed a Submitting Notice, save as to costs.

New information — ss 473DC & 473DD

8    Sections 473DC and 473DD form part of Part 7AA of the Migration Act 1958 (Cth) (the “Migration Act”).

9    Part 7AA was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The history of some of the key provisions of that Part has been summarised by Griffiths J in Minister for Immigration & Border Protection v AMA16 [2017] FCAFC 136 at [12] to [27], (2017) 254 FCR 534 at 538 to 541. That history need not be repeated. Within Pt 7AA, s 473BA sets forth a “[s]implified outline of this Part” and states (inter alia) that the “Part provides a limited form of review”. The Part, it has thus been observed by McKerracher J, was “intended to provide a limited form of review of certain decision to refuse protection visas to some applicants, including unauthorised maritime arrivals…”: CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434 at [9], (2017) 257 FCR 297 at 299.

10    Within Pt 7AA, ss 473DC and 473DD provide for those circumstances in which the Authority may “get” what is referred to as “new information” and the manner in which any such “new information” may be considered.

11    Section 473DC provides as follows:

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 applicant 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.

As s 473DC(2) makes apparent, the Authority is under no “duty to get, request or accept any new information”: cf. DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [64] per Barker J; AJE17 v Minister for Immigration and Border Protection [2018] FCA 111 at [19] per Flick J. Even in the absence of a “duty” to “get” new information, s 473DC nevertheless confers a power to do so and a “failure to consider the exercise of that discretionary power [which] lacks an evident and intelligible justification” may give rise to jurisdictional error: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [40] and [82] per Robertson, Murphy and Kerr JJ.

12    Section 473DD provides as follows:

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.

13    In commenting upon ss 473DC and 473DD, Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, (2018) 92 ALJR 481 at 488 (“Plaintiff M174/2016”) set forth the terms of s 473DC, a provision which it characterised as “entirely facultative”, and continued:

[24]    The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

[25]    There is no inherent dichotomy between new information which meets the two conditions set out in s 473DC(1)(a) and (b) and review material which the Secretary is required to give the Authority under s 473CB. That is because review material is not limited to information that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa.

[26]    In relation to information contained in review material given to the Authority by the Secretary that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa, s 473DA(2) makes clear that there is no general requirement for the Authority to give that material to the referred applicant. There is, however, nothing in Pt 7AA to preclude the Authority from giving the whole or some part of that material to the applicant or another person in the context of exercising the power conferred by s 473DC(3) to invite the giving of new information, and s 473DA(2) is not addressed to what might be required of the Authority in particular circumstances in order to exercise that power reasonably.

(footnote omitted)

Their Honours went on to consider s 473DD as follows (at 488 to 489):

[28]    Section 473DD imposes restrictions on when the Authority can consider new information ...

[29]    The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.

[30]    Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

[31]    Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

(footnote omitted)

14    After considering these observations, Perry J concluded that it follows that “despite the prima facie width of the discretion in s 473DC(1), when read in the context of Part 7AA the default position is that the IAA conducts the fast track review on the papers by reference to the material provided to it by the Secretary under s 473CB(1)”: EPT17 v Minister for Home Affairs [2018] FCA 570 at [42].

New information & the opportunity to satisfy the Authority

15    The substance to the first Ground of Appeal was that the now-Appellant had been denied an opportunity to satisfy the Authority that there was “new information” that fell within s 473DD(b)(i) and (ii). The First Respondent contended that this was a new allegation, raised for the first time on appeal and as such the Appellant needed leave to rely on it: cf. Coulton v Holcombe (1986) 162 CLR 1. This submission can be put to one side as, in any event, Ground 1 is without merit.

16    The information which it was said constituted “new information” was that set forth in a two page submission provided by the now-Appellant to the Authority. That submission addressed, three key topics, namely:

    the now-Appellant being “stateless”, with reference being made to (inter alia) the “pressure” put on people of the “opposite political opinion”; the difficulties for an “opposite political activist or supporter” in obtaining a birth certificate and National ID; and the parents of the now-Appellant obtaining a “national [ID] card of Bangladesh” prior to 2009;

    the now-Appellant’s “Father’s involvement with Jamat Islam”; and

    “[Awami League] harassment”.

17    The manner in which the Authority dealt with this submission was addressed as follows, at the outset of its reasons:

Information before the IAA

2.    I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act).

3.    On 27 February 2017 the applicant provided a submission to the IAA and this engaged in argument with the delegate’s decision without providing any new information which was not already before the delegate. I have had regard to the submission and its arguments.

The conclusion of the Authority that the submission contained no “new information” was accepted during the course of the current proceeding by the now-Appellant. All such information had previously either been before the delegate in the form of a statement then made by the now-Appellant or emerged from an interview previously held.

18    There was thus no room for the operation of ss 473DC and 473DD of the Migration Act. There was no “new information” which attracted ss 473DC and 473DD: cf. Plaintiff M174/2016, supra. And, in the absence of any “new information”, there was no denial of procedural fairness in not affording the now-Appellant an opportunity to make submissions as to the application of s 473DD(b)(i) and (ii).

19    Ground 1 of the Notice of Appeal is thus rejected.

Denial of procedural fairness

20    The content of the second Ground of Appeal is not easy to comprehend. It has nevertheless been construed as an allegation as to a denial of procedural fairness on the part of the Federal Circuit Court arising from the manner in which the Appellant then expressed the grounds upon which his application was there advanced. The fact that he was unrepresented, the Appellant contended, led to his arguments before the Federal Circuit Court not being then “properly” set forth with the consequence that those grounds were not properly “assessed”.

21    Two points may be made at the outset, namely:

    the onus for making out a denial of procedural fairness and jurisdictional error, as with other grounds, remains upon the party making such an allegation: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [71], (2010) 187 FCR 362 at 384 per Kenny J; and

    although the difficulties confronting unrepresented parties in proceedings arising under the Migration Act (in particular) are well-recognised and repeatedly canvassed (cf. Singh v Minister for Immigration and Border Protection [2019] FCA 631 at [18] to [19] per Flick J), the responsibility and duty of a primary Judge is to resolve a proceeding in accordance with law.

22    The grounds upon which the application before the Federal Circuit Court proceeded were, with respect, ill-expressed. The primary Judge, albeit in a comparatively short judgment, gave reasons for dismissing the claims made. Of those reasons, three things may be noted, namely that those reasons:

    set forth in some detail the claims upon which the now-Appellant sought the Safe Haven Enterprise visa and the manner in which those claims were resolved by the Authority;

    accurately characterise the first nine of the ten grounds upon which review was sought as an “un-particularised factual assertions which, when considered, would only give rise to the Court undertaking an impermissible merits review, something which it cannot do”: [2018] FCCA 3651 at [9]; and

    separately address and resolve the only ground that was accepted as “having some validity”: [2018] FCCA 3651 at [9] to [12]. This was a “ground” which asserted that “relevant information not considered”. The “information” which was not considered was not further identified but it was not possible to discern from the reasons of the Authority any “information” which was not taken into account.

But some initial reservation is expressed as to the manner in which the first nine Grounds were rejected.

23    Of these nine grounds, it may be noted that some were expressed (for example) simply in terms of a statement of fact: i.e., “The Applicant is a citizen of Bangladesh”. Others recited the claim that Australia “owed protection obligations” or that the now-Appellant “fear[ed] persecution from the Bangladesh Awami League … because of [his] father[’s] political involvement”. Although it may have been correct to conclude that so expressed these “grounds” were “un-particularised”, it would have been far preferable for the primary Judge to have expressly addressed each of the “grounds” to make apparent that consideration had been given to each of them. Although “un-particularised”, it is perhaps apparent that the now-Appellant was seeking to contend that there had not been a proper consideration given by the Authority to his claims to fear persecution. Other of the nine “grounds”, it is to be recognised, provided even less assistance to the primary Judge as to the argument sought to be advanced: e.g., the “ground” that asserted that the delegate’s decision and that of the Authority were “affected by legal error”.

24    Procedural fairness requires not only an opportunity to be heard but an opportunity to be heard by someone who is prepared to listen: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [389], (2013) 210 FCR 505 at 577 to 578 per Flick J. The reason why it is far preferable for a decision-maker, such as the primary Judge in the present case, to briefly address each of the “grounds” relied upon – even if those grounds are deficiently expressed – is that a failure to do so provides at least the starting point for an argument that a decision-maker has not been prepared to listen to what an unrepresented party is trying to say. Although the onus forever lies upon a party to make out a ground of review, a badly expressed argument is no reason of itself why it should not be entertained and considered. A “formulaic” response, such as (for example) to grounds of review being an attempt to invoke “impermissible merits review”, may ultimately be a correct conclusion to reach; but the reasons why that conclusion has been reached should be set forth: cf. DQA16 v Minister for Immigration and Border Protection [2018] FCA 2086 at [67] to [72] per Wigney J; AYG18 v Minister for Home Affairs [2019] FCA 454 at [24] to [25] per Flick J. And that is best done in some cases by referring to each ground individually. The extent of those reasons, it may be accepted, may be brief.

25    In the absence of evidence, it will be difficult to make out a denial of procedural fairness by reference solely to the reasons for decision. An unfounded and generally expressed conclusion as to why the majority of the Grounds of Review have been rejected may, in some cases, nevertheless provide a starting point for a submission that a decision-maker has not been prepared to entertain arguments and submissions advanced.

26    Although arguable, such is not the present case. Although the first nine Grounds of Review were rejected in a very generally expressed manner, the primary Judge in the present case had previously set forth with some care the basis upon which the now-Appellant sought a protection visa and the findings made by the Authority. In addition, the primary Judge also sought to bring that summary of the claims made and the consideration given to those claims by the Authority together for the purposes of applying the Grounds of Review as follows:

[10]    In that regard, however, it can be seen from a reading of the detailed reasons of the Authority, that the Authority did consider the Applicant’s claims by reference to the relevant legislative criteria, as well as by reference to the alleged evidence on which the claims were made by the Applicant. The Authority made appropriate findings of fact that were open to it for the reasons stated by it. The Authority found that the Applicant did not meet the definition of refugee under the Act, and that he did not satisfy any of the protection criteria under the Act.

It could thus not be concluded that the primary Judge did not genuinely consider and listen to the bases upon which the now-Appellant sought protection and genuinely consider the reasons why the Authority rejected those claims.

27    Even if Ground 2 of the Notice of Appeal were to be construed as an argument that the now-Appellant was denied procedural fairness not only by the Federal Circuit Court but also by the Authority, any such argument is equally without substance. The now-Appellant had been advised of the ability to provide “new information” to the Authority and the circumstances in which it would be considered. The extent to which a party avails himself of such an opportunity is a matter for his consideration. But, given the advice provided, there is no self-evident denial of procedural fairness being extended to the now-Appellant by the Authority.

28    However the second Ground of Appeal is to be construed, it is rejected.

CONCLUSIONS

29    Neither of the Grounds of Appeal have been made out.

30    The appeal should be dismissed.

31    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:    

Dated:    12 July 2019