FEDERAL COURT OF AUSTRALIA

FHK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 156

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia made on 7 March 2019 dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made under Part 7AA of the Migration Act 1958 (Cth) (Act) on 20 September 2018. The Authority had affirmed a decision of a delegate of the Minister refusing to grant the appellant a safe haven enterprise visa.

2    The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Authority was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.

3    By his notice of appeal, the appellant relies on the sole ground of review advanced before the primary judge in the following terms:

The Authority has misconstrued section 473DD of the Migration Act 1958 (Cth). The Authority adopted an erroneous construction of s473DD in that it failed to consider the new information in accordance with the law, failed to consider whether it was satisfied that there are exceptional circumstances to justify considering the new information pursuant to s473DD(a) and adopted an unduly narrow construction of s473DD. In so doing, the Authority misconstrued its statutory task and constructively failed to exercise its jurisdiction under s473DD.

4    The appellant filed written submissions in support of the appeal and made brief oral submissions at the hearing of the appeal with the assistance of an interpreter. The Minister also filed written submissions and made brief oral submissions at the hearing of the appeal.

5    For the reasons that follow, I dismiss the appeal.

Background

6    The appellant is a citizen of Bangladesh who arrived in Australia on 24 March 2013 as an unauthorised maritime arrival. In his arrival interview on 5 April 2013, the appellant stated that, in Bangladesh, he had worked as a farm labourer (1991-2007), in a bag factory (2007-2008), again as a farm labourer (2008-2013) and as a waiter (2012-2013) and that the reason he came to Australia is to obtain work and help to support his family in Bangladesh.

7    By letter dated 10 March 2016, the Department advised the appellant that the Minister had determined, pursuant to s 46A(2) of the Act, that s 46A(1) would not apply and invited the appellant to apply for a temporary protection visa or a safe haven enterprise visa.

8    On 10 August 2016, the appellant lodged an application for a safe haven enterprise visa. In support of his application, the appellant signed a statutory declaration (dated 9 August 2016) in which he made the following claims:

(a)    The appellant was born in September 1988 in the village of Nurpur, police district of Khalipur, Debdiwar, Comilla province. He went to school until class 4 and then started working.

(b)    The appellant used to work in the construction sector. He was a subcontractor and employed about 20 people building houses in Nurpur. A man named Tahir stopped paying him after 6 months, owing him 200,000 Bengali taka. People subcontracted to him started to ask him for their money. The end amount of money owed with interest was 500,000 taka.

(c)    Tahir was the right hand man of the local Awami League (AL) member. The appellant was told that, in order to get his money, he had to work for the AL. He was expected to join the processions and fight for the AL. However, the appellant was a supporter of the Bangladesh National Party (BNP) and refused to join the AL.

(d)    About 2 months after stopping the payments, Tahir called the appellant at 10pm and asked him to come to his house and Tahir would pay the money. When the appellant went to Tahir’s house, 4 to 5 people arrived and started beating him. The following day he was in hospital. His parents told him he was beaten severely before he lost consciousness. The appellant reported the beating to the police but they refused to take any action.

(e)    Tahir then started a story that the appellant had taken the 200,000 taka and he was intentionally not paying his workers.

(f)    On 15 January 2013, many people came to the appellant’s house at 10pm and started to beat him. His sister-in-law tried to intervene and was stabbed. His parents were in the house, but not his brother. The appellant managed to escape and fled to Dhaka. When he called home he learnt his sister-in-law had been killed. Three days later, his parents were beaten and taken to the hospital. The people who beat the appellant and his family are still looking for him.

(g)    Tahir is able to employ people in different places in Bangladesh. Tahir is able to bribe officials and so no journalists reported the killing and no police action was taken over the murder of his sister-in-law.

(h)    There is no protection from the police in Bangladesh. The police support the AL. The appellant has a political reason for needing protection in Australia as his family are supporters of the opposition party to the AL (the BNP).

(i)    The appellant sought asylum in Australia not just because he wanted a job but because of his refusal to work for the AL. He fears he would be killed because of the political violence in Bangladesh.

9    On 19 March 2018, the appellant was interviewed for the purposes of the application for the safe haven enterprise visa (SHEV interview). On 24 April 2018, a delegate of the Minister refused the application. The delegate did not accept that the appellant was a politically active supporter of the BNP, based on the information given by the appellant in the SHEV interview. The delegate also did not accept the appellant’s claims set out in his statutory declaration relating to his work in the construction sector, his employment by a man named Tahir and the pressure to work for the AL. The reasons for not accepting those claims included the information given by the appellant in the SHEV interview (and inconsistencies in that information) as well as the inconsistency with the appellant’s entry interview where the appellant had listed his previous occupations which did not include working in the construction industry.

10    On 27 April 2018, the delegate’s decision was referred to the Authority for review under Part 7AA of the Act. On 30 April 2018, the Authority wrote to the appellant informing him of the referral.

11    On 21 May 2018, the appellant’s migration agent provided written submissions to the Authority (May submissions). It is the content of the May submissions, and the Authority’s treatment of that content, that is the subject of the present appeal. The submissions addressed the different claims made by the appellant in his entry interview and in his application for a safe haven enterprise visa, and included the following submission:

The Entry Interview has been taken out of context and emphasis placed on the fact that [the appellant] did not describe any political involvement on arrival. The case officer describes [the appellant] as not “politically astute” and therefore she rejects that he was a supporter of the BNP. [The appellant] did not describe himself as a “member”, only as a supporter, and as there is generally a tradition of family support for the same political party, it is not surprising that he followed his father’s activities in supporting the BNP. [The appellant] would never describe himself as politically astute and impresses as a simple man who struggles with his own language, quite apart from English. His reading and comprehension are limited in Bangla and listening to the recording of the interview it is obvious to a Bangla speaker that [the appellant] does not understand many of the questions asked and translated to the case officer. (emphasis added)

12    In this appeal, the appellant placed reliance on the section emphasised by italics, referring to the submission as the “Language information”. The appellant contends that the Authority failed to apply s 473DD and consider whether to have regard to the Language information.

13    On 20 September 2018, the Authority affirmed the delegate’s decision.

Authority Decision

14    At the commencement of its reasons, the Authority considered whether it was permitted, under s 473DD of the Act, to have regard to the materials submitted by the appellant as part of the May submissions. The Authority concluded (at [4]):

On 21 May 2018 the IAA received a written submission from the applicant’s representative, Ms Jill Vidler. To the extent that the submissions raise argument on the delegate’s findings and decision, or reiterate claims or evidence already given, that is not new information and I have had regard to it in my review.

15    The Authority also observed that, in the May submissions, the appellant referred to certain country information that was not before the delegate. The Authority considered that material under s 473DD of the Act, but those materials are not relevant to the appeal.

16    The Authority did not accept the appellant’s claims for a number of reasons.

17    First, the Authority noted that doubts concerning the credibility of the appellant’s evidence arose because the appellant had provided two “completely opposing versions” of why he came to Australia. In his entry interview of 5 April 2013, the appellant stated that he had been sent to Australia by his father to find work so he could financially support his family back home. He made no mention in this interview of any of his claims of involvement in construction work, the beatings or threats made against his life, or any political involvement. Those claims were raised for the first time in his statutory declaration sworn in support of his safe haven enterprise visa application and the SHEV interview. The Authority noted that the appellant submitted that he did not raise those claims at his entry interview because he had been afraid of disclosing his political affiliation given his understanding that the Australian government was intolerant of politically active individuals and he feared his claim for asylum would be denied. The Authority found this explanation to be inconsistent with the appellant’s claim that, due to his fear of persecution and harm, which he claimed arose specifically because of his political activities, he chose to seek asylum in Australia. The Authority questioned why the appellant would not have mentioned (at his entry interview) the threats made against his life, the beatings he endured and his fear that such harm may continue if he returned to Bangladesh, if the appellant did in fact hold such a fear (at [11]-[13]).

18    Second, the Authority found the appellant’s evidence in his SHEV interview regarding his asserted BNP involvement to be “vague and less than forthcoming”. The appellant was also unable to give any explanation for what the BNP stood for, other than to “follow the honest path”. The Authority found the appellant’s inability to give any meaningful account of his own activities or the nature of the BNP’s activities at a local level to be inconsistent with his claim in his SHEV interview that he was a signed up member of the BNP who was well-known locally as an active supporter of the BNP. The Authority did not accept that the appellant was an active BNP supporter or a BNP member (at [14]).

19    Third, the Authority found the appellant’s claim that in February 2012 he was contracted as a subcontractor to work on or supervise part of the construction of a five story residential building to be implausible. The Authority found that the appellant was unable to provide any credible evidence of what his supervision involved or what instructions he gave those under his supervision. The Authority considered it improbable that such building work would be entrusted to a 23 year old who had no training, qualifications or experience of any kind in relation to any aspect of construction work (at [15]).

20    Fourth, the Authority rejected the appellant’s claims that a man known as Tahir, whom the appellant described as the right hand man of the local AL member, or any other member of the AL, had any adverse interest in the appellant, had tried to force him to join the AL or had used the lure of a building work contract to try to force him to join the AL (at [16]).

21    Fifth, the Authority found that the appellant’s claim that he and his employees had continued to perform the work pursuant to the construction contract he had entered into with Tahir for a further five months after the alleged assault to be improbable given the appellant’s evidence that he had continually refused to join the AL, been beaten and nearly killed when he sought to recover the money owing and that Tahir had been spreading a rumour that the appellant had taken the money but was refusing to pay his employees (at [17]).

22    The Authority considered the May submissions, including the statements concerning the appellant’s difficulties in understanding questions put to him because of language and comprehension difficulties. The Authority stated that it had listened to an audio recording of both the entry interview and the SHEV interview and observed (at [19]):

I note from the audio tape of the SHEV interview that the applicant appeared to have some difficulties answering questions asked about his sub-contractor role, his involvement with Tahir and his BNP activities, with the interpreter sometimes having to repeat or clarify questions and responses. I am willing to accept that the applicant may not be highly educated or sophisticated, however, there is no evidence before me of any diagnosed mental or cognitive impairment. Further the delegate exhibited patience in her questioning and asking questions in different ways to allow the evidence to come out. I note that the audio of the Entry interview does not exhibit similar difficulties of answering questions. I consider it is plausible that the applicant’s vague and sometimes incoherent evidence on the issues around his claims may be explainable as that he was attempting in the SHEV interview to recount a history that was not entirely his own personally lived experience.

23    The Authority concluded that the appellant did not meet the criteria in ss 36(2)(a) or (2)(aa) of the Act.

Decision of the Federal Circuit Court

24    On 10 October 2018, the appellant filed an application for judicial review of the Authority’s decision in the Federal Circuit Court under s 476 of the Act. A second further amended application was filed on 4 March 2019 in which the appellant raised a single ground of review identical in terms to that which is relied on in this appeal.

25    Subject to various exceptions (which are not presently relevant), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

26    The primary judge concluded that, on a fair reading of the Authority’s reasons, the Language information was information to which the Authority had regard and was not treated by the Authority as “new information” for the purposes of s 473DD of the Act (at [19]). The primary judge concluded that there was no jurisdictional error in failing to treat the Language information as “new information” under s 473DD in circumstances where the Authority took it into account in the review (at [22]). The primary judge rejected a contention that the Language information was a new claim or integer that had to be the subject of an express finding, concluding that the Authority adequately dealt with the claim (at [27]).

The appeal

Appellant’s submissions

27    The appellant submitted that the Language information was “new information” within the meaning of s 473DD. He submitted that the term “new information” must be read to mean 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 which was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa and which the Authority considers may be relevant, relying on Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (Plaintiff M174/2016) at [24].

28    The appellant submitted that paragraphs 4 to 6 of the Authority’s reasons were the full extent of the Authority’s consideration of the Language information, and that the Authority had failed to consider or apply s 473DD.

29    The appellant submitted that the Language information conveyed that the appellant was not fluent in either English or Bengali which would have affected his comprehension at both the entry interview and the SHEV interview. As such, the appellant submitted that the Language information was credible personal information, which was not previously known, and had it been known, may have affected consideration of the appellant’s protection claims. The Authority’s reasons show that the omissions in the appellant’s entry interview and the inconsistencies between the claims made in his entry interview and his application for a safe haven enterprise visa were ultimately fatal to his application.

Minister’s submissions

30    The Minister advanced three primary submissions in response.

31    First, the Minister submitted that the appeal proceeds from a misreading of the Authority’s decision. The Minister argued that the Authority treated the Language information as a submission and stated that it was not new information and the Authority would have regard to it (at [4]). Accordingly, there was no need for the Authority to address s 473DD in relation to that submission.

32    Second, the Minister submitted that the appeal is also based on a misstatement of the effect of the May submissions. The May submissions did not advance a contention that the appellant failed to refer to political involvement on his arrival in Australia because of language difficulties in the entry interview. Rather, the May submissions advanced a contention that the appellant failed to refer to political involvement on his arrival in Australia because the appellant is not “politically astute and impresses as a simple man”.

33    Third, the Minister submitted that the Authority did consider and make findings about the issue that the appellant referred to as “Language information”, concluding that the audio of the entry interview does not indicate that the appellant had difficulties in answering questions. The Minister submitted that it also followed that, even if the Authority erred in its characterisation of the “Language information”, the error did not deprive the appellant of the realistic possibility of a different decision and therefore was not jurisdictional error.

Consideration

34    Section 473DD of the Act places a statutory limitation on the Authority’s ability to consider new information in making its decision under Part 7AA. The section 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.

35    In Plaintiff M174/2016, the High Court determined that the expression “new information” in s 473DD of the Act is limited to “information” in the ordinary sense of a communication of knowledge about some particular fact, subject or event (at [24] per Gageler, Keane and Nettle JJ, with whom Gordon J agreed at [78] and Edelman J agreed at [100]).

36    As the Full Court of this Court observed in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482, the Authority is not precluded by s 473DD from considering a submission from a visa applicant directed to such matters as the information already made available to the Authority and the consequences which are said to flow from that already established pool of factual information (at [35]).

37    Having regard to the statutory provision and the above principles, in my view the appellant’s ground of appeal fails at a number of levels.

38    First, the appellant seeks to isolate a sentence from the May submissions and give it a meaning that differs from its meaning within the May submissions. The first part of the May submissions, in which the Language information sentence appears, addressed the question whether the delegate was correct to reject the appellant’s claims of having political involvement with the BNP. Relevantly, the May submissions stated:

The Entry Interview has been taken out of context and emphasis placed on the fact that [the appellant] did not describe any political involvement on arrival. The case officer describes [the appellant] as not “politically astute” and therefore she rejects that he was a supporter of the BNP. [The appellant] did not describe himself as a “member”, only as a supporter, and as there is generally a tradition of family support for the same political party, it is not surprising that he followed his father’s activities in supporting the BNP. [The appellant] would never describe himself as politically astute and impresses as a simple man who struggles with his own language, quite apart from English. His reading and comprehension are limited in Bangla and listening to the recording of the interview it is obvious to a Bangla speaker that [the appellant] does not understand many of the questions asked and translated to the case officer.

Political affiliation in Bangladesh, one of the poorest and most densely populated countries in the world, is not simply driven by an interest in party platforms, but how it relates to core survival, protection from extortion, endemic corruption as well as generational, familial identity.

Further, it is proposed, political affiliation is a critical, survival tool in daily life in Bangladesh. Party membership provides a social network, protection and identity. Support for a political group is part of the Bengali culture and for the case officer to reject this activity in [the appellant's] case, on the grounds that he knew little about party policies or was not "politically astute" indicates a failure to understand the applicant or his village life. He apparently called himself a "known" activist, which referred, he said, to his local area. Because he could not talk about policies or party platforms in detail in the SHEV interview, this does not mean that he was not an "active supporter" of the BNP, in the sense that he would participate in local activities. In-depth knowledge of 'policy' is irrelevant in the context of local Bangladeshi politics and this affects applicants like [the appellant] who held no specific office.

…

[The appellant] states that the reason he did not talk about anything "political" when he arrived was because of his understanding that the Australian government was intolerant of political activities and he was afraid he would be denied an opportunity to claim asylum. This is not an uncommon fear amongst asylum seekers with little education or knowledge of legal process. The case officer was reminded that Entry interviews are not for the purpose of obtaining details of asylum claims or investigating those claims. Logically it does not follow that the arrival entry interview can be both unimportant and important at the same time.

39    The primary submission advanced in the relevant part of the May submissions was that the delegate’s finding, that the appellant lacked the political astuteness of someone who claims to be politically active with the BNP, failed to take account of the appellant’s circumstances. Those circumstances include being a “simple man”, having poor language skills, and the social and political context of village life in Bangladesh. The submission that, in the interview (it is not clear whether the entry interview or SHEV interview is being referred to), the appellant did not understand many of the questions asked, was not directed to the inconsistencies between the information provided in the entry interview and the SHEV interview. It was a submission in support of the primary submission that the appellant is a simple man who struggles with his own language, and that his claim of political involvement must be assessed in light of his personal circumstances.

40    As can be seen from the above extract, the May submissions directly address the question of why the appellant did not make any claims concerning political involvement in the entry interview. The answer was because of his understanding that the Australian government was intolerant of political activities and he was afraid he would be denied an opportunity to claim asylum. The answer was not that he was unable to understand questions asked of him in his entry interview.

41    Second, the Authority correctly characterised that part of the May submissions and took it into account. As noted earlier, at paragraph 4 of its reasons, the Authority expressly stated that, to the extent that the May submissions raised arguments on the delegate’s findings and decision, or reiterated claims or evidence already given, that is not new information and the Authority had regard to it. At paragraph 13 of its reasons, the Authority addressed the appellant’s explanation (given in the May submissions) that he did not make any claims concerning political involvement in the entry interview because he understood that the Australian government was intolerant of political activities. The Authority did not accept that explanation. At paragraph 14 of its reasons, the Authority explained why it did not accept the appellant’s claims of political involvement, based on the appellant’s inability to provide information about his alleged political activities.

42    Third, even though the May submissions did not, in substance, advance a contention that language difficulties were the explanation for the appellant’s failure to refer to political involvement in the entry interview or provide information about the alleged political activities in the SHEV interview, the Authority nevertheless gave consideration to that question. At paragraph 19 of its reasons, the Authority considered whether the language difficulty existed. After listening to the audio tape of the interviews, the Authority concluded that the appellant did not have difficulties answering questions in the entry interview but did have difficulties answering questions in the SHEV interview about his alleged role in the construction sector, his involvement with the man named Tahir and his BNP activities. The Authority considered that the appellant’s difficulties were explained by the fact that he was attempting to recount a history that was not his own lived experience.

43    For those reasons, in my view there was no jurisdictional error in the manner in which the Authority took into account the May submissions, and particularly the Language information. Even if, contrary to the above conclusion, the Authority had erred in failing to treat the Language information as “new information” for the purposes of s 473DD, it would remain for the appellant, in order to show jurisdictional error, to establish that that error was material to the Authority’s decision: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] per Bell, Gageler and Keane JJ. In my view, any such error cannot have been material to the decision because the Authority considered the Language information and assessed it (at [19] of its reasons).

Conclusion

44    The appellant has failed to demonstrate any appellable error on the part of the primary judge or any jurisdictional error on the part of the Authority. Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:    21 February 2020