FEDERAL COURT OF AUSTRALIA

EXZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1939

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The application for leave to appeal is dismissed.

3.    The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

1    The applicant seeks leave to appeal under r 35.11 of the Federal Court Rules 2011 (Cth) (FC Rules) from an interlocutory decision of the Federal Circuit Court of Australia: EXZ18 v Minister for Home Affairs & Anor [2019] FCCA 1307.

2    The Federal Circuit Court dismissed the applicant’s application for judicial review of a decision of the Immigration Assessment Authority made on 30 August 2018 affirming a decision of a delegate of the then Minister for Home Affairs not to grant him a Protection visa subclass 790 Safe Haven Enterprise Visa (SHEV).

3    Leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the decision of the Federal Circuit Court was interlocutory, having been made under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) – see FCC Rule 44.12(2). Rule 44.12 provides as follows:

Show cause hearing

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed - adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

4    The decision whether to grant leave to appeal is discretionary. Relevant factors include:

(1)    whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a Full Court; and

(2)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

See: Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 at [3] (Perry J); SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [8] (Flick J); Rawson Finances Pty Limited v Commissioner of Taxation (2010) 81 ATR 36 at [4] (Ryan, Stone and Jagot JJ); Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398.

5    For the reasons set out below, I do not consider that either of the two factors identified above, or any other reason, warrant leave being granted.

BACKGROUND

6    The applicant is a citizen of Bangladesh, who arrived in Australia at Christmas Island on 24 March 2013. He was as an “unauthorised maritime arrival” - see s 5(1); s 5AA of the Migration Act 1958 (Cth).

7    On 10 March 2016, the Minister exercised his discretion under s 46A(2) of the Migration Act, to allow the applicant to make a valid application for a specified visa.

8    On 11 August 2016, the applicant applied for a SHEV. He claimed to fear harm in Bangladesh from Awami League (AL) members because he was a member and supporter of Jamaat-e-Islami (JI) and refused to join the AL and from members of the Naxal gang because he witnessed the Naxal gang beat an AL member who later died.

9    On 25 May 2018, the applicant attended an interview with an officer of the Minister’s department, and on 13 June 2018 the applicant’s representative submitted post-interview submissions.

10    On 6 July 2018, the delegate refused to grant the applicant a SHEV. The delegate’s decision was a “fast track reviewable decision” - see: s 5(1); s 473BB. The decision was referred on 12 July 2018 to the Authority for review in accordance with Part 7AA - see, in particular: s 473CA.

11    The applicant provided submissions to the Authority on 3 August 2018 which addressed the delegate’s decision but did not provide any new information. On 30 August 2018, the Authority affirmed the delegate’s decision.

12    The applicant sought judicial review in the Federal Circuit Court. As mentioned his application was dismissed under r 44.12(1)(a) of the FCC Rules on 16 May 2019.

13    On 22 May 2019, the applicant filed an application for leave to appeal to this Court. This application was made within the 14 days permitted by r 35.13(a) of the FC Rules.

The Authority

14    The Authority had regard to the submissions provided to it by the applicant on 3 August 2018: A[4].

15    In those submissions, the applicant stated that there were deficiencies in the interpreting in the SHEV interview. The Authority summarised the relevant events as follows at A[5]-[6]:

[5]    In the submission, it was argued there were deficiencies in the interpreting in the SHEV interview. That the interview started at 9:13am and was stopped at 9:49am because of problems with the quality of the interpreting; the case officer, the applicant and solicitor had some discussion about the quality of the interpreting, but the case officer did not want to change interpreters. The SHEV interview recording was paused for this period of time. Unfortunately, the delegate did not explain, for the benefit of the recording, why he stopped the recording and what happened in the intervening period before he resumed recording.

[6]    Before the recording was stopped, the delegate said he would move on from his line of questioning about what specifically happened to the applicant’s father and brother to make them leave Bangladesh in 2014 and go to Malaysia, because he said he was not getting anywhere. The migration agent responded on behalf of the applicant and said the applicant can explain it quite well, it is just that there are issues here. The delegate said he had the applicant’s SHEV application and he said he talks to his wife every day, and he expected the applicant would know the information he requested. The migrant agent said they could make another statement. The delegate said there will be time for that afterwards. The delegate then paused the recording of the interview. When the recording resumed, the delegate said they would try just one last time, and asked what was the event or events that caused the applicant’s father to leave. The applicant responded in Bengali, he was interpreted in English, and the interview continued. There was no discussion about any interpreting issues in the recording of the interview.

16    The Authority then noted that the applicant addressed the reasons why his father and brother went to Malaysia in 2014 in a post-interview submission to the Minister, stating at A[7]:

At point five of the applicant’s post-interview submission to the delegate dated 12 June 2018, the applicant briefly stated the reasons why his father and one brother went to Malaysia, and the information given supported that given in the SHEV interview, via the interpreter. This point addressed the line of questioning which preceded the delegate’s decision to pause the SHEV interview. I consider the applicant was given, and took, the opportunity during the SHEV interview and in the post-interview submission to state his claims in this regard.

17    The applicant also argued in his submission to the Authority that the interpreter often made little sense and the translations that the interpreter gave after a two minute statement by the applicant resulted in a one phrase answer. However, the Authority found at A[8]-[9]:

[8]    …Having listened to the SHEV interview, I do not agree with this argument. I understood the English language of the interpreter and did not detect instances when the applicant spoke for two minutes in Bengali and the interpreting into English was a one phrase answer. The applicant’s submission to the IAA did not identify any inaccuracies in the interpreting at the SHEV interview.

[9]    The applicant’s post SHEV interview submission to the delegate made a number of points about the inability of the applicant to explain himself adequately, and argued that generally departmental case officers place the answers of applicants into their own world view and despite the applicant’s case officer being responsive to the applicant’s answers, he was aware that the interpreter was not competently translating the applicant’s responses into adequate English, and the result is a vast cultural gap between the parties. No particular inaccuracies in the interpreting were highlighted in the submission. The delegate’s decision addressed this issue and stated he gave little weight to the applicant’s submissions about the interpretation at the SHEV interview as no inaccuracies were demonstrated. He stated [that,] if there were inaccuracies, the applicant had the opportunity of submitting examples to support his claims in his post interview submissions, which he did not do. He said the interpreter was accredited by the National Accreditation Authority for Translators and Interpreters (NAATI), and he found the interpreter at the SHEV interview correctly conveyed the applicant’s testimony.

18    The applicant had also submitted to the Authority that the delegate chose to ignore the post-interview submission. However, the Authority found that the delegate’s decision clearly addressed the post-interview submission, including the claim about the quality of interpreting: A[10].

19    The Authority considered whether to get new information from the applicant in writing or through an interview and was satisfied that it was not warranted: A[10].

20    The Authority’s decision was accurately summarised by the primary judge in the following way (footnotes omitted):

Authority decision

[8]    The Authority accepted that the applicant was a married Muslim man from Pabna district in Bangladesh; that his wife, mother, one brother and two sisters continue to live in Bangladesh; that he was from a small village of mostly farmers; and that his father and grandfather were farmers. The Authority was also prepared to accept that his father and another brother currently resided in Malaysia, and that the applicant left Bangladesh by boat without using a passport.

[9]    However, the Authority did not accepted any of the applicant’s other claims, including that:

a)    he joined Bangladesh Islami Chhatra Shibir (ICS), the student section of JI, in 2008 (or at all) and attended monthly meetings;

b)    he witnessed a physical assault in December 2012 by members of the Naxal gang against an AL member, or any of the incidents that flowed from that claimed event; namely, that:

i)    he intervened and arranged for the beaten man to be sent to hospital where he later died;

ii)    the gang members threatened to harm him;

iii)    he was pressured by the AL and the police to be a witness in the case;

iv)    he made a complaint to the police in January 2013;

v)    physical violence was perpetrated against family members by AL; or

vi)    his family home was burnt down by AL or family land was confiscated by AL;

c)    before travelling to Malaysia in 2014, his father and brother were in hiding and travelled to Malaysia because the family home was burnt down, their land was confiscated in January or the AL demanded money from his father;

d)    his younger brother is or was in hiding in Bangladesh; and

e)    he or his family supported or were members of JI.

[10]    In light of these factual findings, the Authority was not satisfied that the applicant had the profile of a person who would be targeted for any harm by the AL government, its members or supporters; that he would be active in support for the JI if he returned to Bangladesh; that there was a real chance he would be targeted for real or perceived support for ICS or JI; or for any other reason, including because he was a Muslim, because of his departure from Bangladesh or as a returning failed asylum seeker. Accordingly, the Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) and s 36(2)(a) of the Migration Act and, for the same reasons, the Authority found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act.

Federal circuit court

21    The sole ground of judicial review before the Federal Circuit Court was as follows:

The Authority’s decision was inconsistent, and so unreasonable. Particulars will be provided once the court book is provided.

22    The primary judge observed at J[20] that “the sole ground of review is an unparticularised assertion of error that cannot succeed in the absence of meaningful particulars”. His Honour stated that the “failure to particularise a ground of application is itself sufficient to warrant dismissal of that ground,” citing: AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35]; WZAVW v Minister for Immigration [2016] FCA 760 at [35].

23    The primary judge described the applicant’s oral submissions as follows at J[15]:

… He told me that he expected to receive protection. He noted that neither the delegate nor the Authority granted him the protection he sought. It is obvious that he is disappointed with the outcome. He was not, however, able to advance any legal argument warranting a final hearing.

24    Notwithstanding the lack of meaningful particulars and having heard oral submissions, the primary judge carefully reviewed the Authority’s reasons.

25    His Honour considered that the only issue which might have warranted a final hearing could have been the question of the information before the Authority. However, his Honour ultimately decided that the issue did not warrant a final hearing, saying at J[17]-[18]:

[17]    As the Authority pointed out at [5] of its reasons, it is unfortunate that the delegate stopped the recording of the interview before him without any explanation. The applicant had asserted interpretation problems as the reason for the pause in the recording, but there was nothing available to the Authority to support that assertion. The Authority took the precaution of listening to what was on the recording and could not detect any interpretation problems.

[18]    At [10], the Authority states that it considered obtaining new information from the applicant either in writing or at interview. The Authority concluded that that action was not warranted in the circumstances of this case. As the Minister submits, that was within the range of available alternative exercises of the discretion available to the Authority. I detect no arguable case of jurisdictional error by the Authority in that regard

26    The primary judge noted that there was no evidence before the Federal Circuit Court that could support a contention that the process before the delegate was deficient in any way that could affect the Authority’s decision: J[24].

27    His Honour considered whether the Authority’s decision not to get “new information” as permitted by s 473DC of the Migration Act was legally unreasonable, concluding it was not: at J[26]-[27].

28    Further, his Honour concluded that the Authority conducted its review in accordance with the provisions of Part 7AA, and properly considered the applicant’s claims and the totality of the evidence before it. His Honour considered that the Authority’s decision was not illogical or lacking an evident and intelligible justification: J[28].

29    The primary judge concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Authority and therefore dismissed the application under FCC Rule 44.12(1)(a): J[29].

THE APPLICATION

30    The applicant’s proposed ground of appeal was:

The court below made a jurisdictional error when it failed to take into account relevant considerations and took into account irrelevant considerations.

Migration regulations requires the decision maker in respect of the applicant’s primary application for a SHEV visa to make determination as to whether criteria for the grant of the visa prescribed by the Act or the Regulations made there under were satisfied. The Tribunal failed to assess the relevant material presented on logically probative and relevant materials.

31    The applicant’s complaint, as I understood it, was that the Authority committed a jurisdictional error in its review and that the primary judge erred in not so concluding. The applicant did not suggest that the primary judge failed to take into account relevant considerations or took into account irrelevant considerations; rather, that complaint was directed to what the Authority had done.

32    This Court cannot conduct a merits review of the Authority’s decision. Nor could the primary judge. Notwithstanding the broad ground of review put to the primary judge and the lack of identification of any matter which might indicate jurisdictional error on the part of the Authority, the primary judge conducted a diligent analysis and review of the Authority’s reasons and was not satisfied that jurisdictional error was arguably disclosed. His Honour has not been shown to have erred in reaching that conclusion or in exercising the power under FCC Rule 44.12.

33    Having reviewed the Authority’s reasons and those of the primary judge, I am not satisfied that the applicant has demonstrated jurisdictional error on the part of the Authority or that the primary judge erred in dismissing the application under r 44.12 of the FCC Rules.

CONCLUSION

34    The application for leave to appeal must be dismissed.

Associate:

Dated:    21 November 2019