FEDERAL COURT OF AUSTRALIA

FEY17 v Minister for Home Affairs [2020] FCA 1014

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for the grant of the constitutional writs in relation to a decision of the Immigration Assessment Authority (“IAA”) affirming a decision of the Minister’s delegate to refuse the appellant’s application for a Protection Visa subclass XE-790 (a “Safe Haven” visa) under the Migration Act 1958 (Cth) (“the Act”).

2    The background to this appeal is as follows.

3    On or around 18 March 2013, the appellant came to Australia as an unauthorized maritime arrival. The Australian navy intercepted the vessel he was travelling on and transported the passengers to Christmas Island.

4    On 18 April 2013 and 6 May 2013, the appellant underwent entry interviews with representatives from the Department of Immigration.

5    On 10 March 2016, the appellant was invited to apply for a Temporary Protection Visa, and on 18 May 2016, he lodged an application for a Safe Haven visa.

6    On 5 April 2017, a delegate of the Minister for Immigration and Border Protection refused the appellant’s application, and on 11 April 2017, the delegate’s decision was referred to the IAA for review.

7    On 9 November 2017, the IAA affirmed the Delegate’s decision. On 28 November 2017, the appellant filed an application for judicial review of the IAA’s decision in the Federal Circuit Court of Australia.

8    At the hearing on 8 November 2018, the primary judge, Judge Egan, dismissed the application and gave ex tempore reasons.

9    The appellant made the following claims, contained in a statement dated 17 May 2016 lodged with his visa application, as set out at [10] – [26] of these reasons.

10    The appellant is a Hindu of Bengali ethnicity from a small village in Bangladesh’s Khulna Division, where he lived until his departure in February 2013.

11    His father owned a parcel of land and supported the family by growing rice and vegetables. Growing up, the family practised Hinduism at home, praying indoors “where it was safe to do so”: AB147. His parents died in a car accident in approximately 1995, after which the appellant’s elder brother took care of him. The appellant helped his brother manage the family home and grow vegetables to eat. They sold the surplus vegetables to support themselves.

12    In 2000, the appellant and his brother applied for National ID Cards and were refused.

13    In 2002, the appellant married in accordance with an arrangement between his brother and the bride’s parents. The appellant’s wife moved into his family home.

14    In 2003, the appellant began to work as a welder, which he continued to do for ten years to support his family. The appellant and his wife had two children, born in 2004 and 2013.

15    After the Awami League’s victory in the 2008 election, the Bangladeshi Muslim community began targeting Hindus. The appellant’s family was “one of only several” Hindu families in his village of about 7,000 people, which “caused serious problems for [the appellant]”: AB148.

16    In the appellant’s village, Muslims form the majority and the appellant’s contention is that Muslim members of the village hate the Hindu families. The Muslims would go to Hindu homes and destroy their houses, force them off their land, abuse, harass, threaten and beat them.

17    In 2011, a group of Muslims came to the appellant’s family home. The Muslims beat the appellant’s family, threatened them and said that if they wanted to live, they needed to go away. The Muslims damaged the appellant’s house and cut his crops, taking all of the vegetables and chilli he and his brother were growing at the time.

18    The appellant and his brother were frightened and lived in constant fear. Every time they saw the local Muslims, they feared what would be done to them. They sought help from the local police, but were told the police had been instructed by high command not to record any complaints against Muslims. They also complained to the Local Council Member and Chairman, who said their hands were tied and they could not help, and that it was up to the appellant and his brother to save their own lives.

19    When the Muslims learnt that the appellant and his brother had sought help from police, they came back to the appellant’s house in 2012 and destroyed it completely, helping themselves to the appellant’s belongings and crops in the process.

20    The appellant’s family then moved to his father and mother-in-law’s house and stayed there for 4 or 5 months. The appellant returned to the family home, but his brother did not, as he was too scared. His brother stayed at his wife’s family’s place but “when he was out one day he disappeared and was never seen or heard from again”: AB148 at [30].

21    One night, approximately five days after the appellant returned home, about ten Muslims wearing masks came to his house. One of the masked men held a pistol to the appellant’s head. The men repeatedly threatened that if the appellant didn’t leave, they would kill his wife and daughter. His wife was pregnant at the time and still living with her parents. The Muslim men told the appellant that he was lucky his wife and daughter weren’t there.

22    The appellant recognised one of the voices as a “local terrorist”, whom he identified by name. The appellant recognised his voice because he had made many threats to the appellant before at the market, in public, at the appellant’s home and on the farm.

23    The appellant is very fearful because of these threats and “didn’t know what happened to [his] elder brother”: AB149 at [33]. He had not received any communication from his brother at all.

24    The appellant’s brother’s brother-in-law, who lived in Chittagong, told the appellant that the appellant’s brother had hidden some money in case something happened to him and the appellant needed to run away. The appellant’s brother’s brother-in-law used this money to arrange and pay for the appellant’s boat trips to Australia.

25    At this point, Muslims had physically abused, threatened, harassed, intimidated and stolen from the appellant. Their relentless harassment and threats caused him to fear for his safety and were the main reason why he left Bangladesh and sought asylum in Australia. The appellant “couldn’t take it anymore” and “fled to Indonesia” on a boat arranged by people smugglers: AB 149 at [36].

26    The appellant has no safe place to return to as a Hindu in Bangladesh. He also fears being seriously harmed because he is unable to prove he is Bangladeshi. He fears being killed and having his body hidden where no-one will find him, because this is what he thinks may have happened to his brother, whom he has not heard from. Since arriving in Australia, he has undertaken English lessons and engaged with his local community by volunteering at a local festival.

27    The IAA made the following findings.

28    The IAA accepted the appellant’s claimed name and age (at [3]), and Hindu faith (at [10]), but did not accept that he is stateless. Having regard to the delegate’s reasons and country information containing summaries of Bangladeshi legislation and trends in the number of Bangladeshis without NICs (national ID cards), plus the lack of difficulty the appellant experienced when obtaining a drivers licence in 2004 and birth certificates for his children, on which he is identified as the father, the IAA, like the delegate, found that the appellant is a Bangladeshi citizen whose receiving country is Bangladesh.

29    The IAA identified five inconsistencies between the appellant’s account of events in his Safe Haven visa interview and his statement of claims, which was prepared with the assistance of a registered migration agent, who was present at the interview and indicated that the statement, which had been prepared with the assistance of an interpreter provided by the appellant, was read back to him: at [14].

30    First, in his interview, the appellant initially stated that the first attack on the family home occurred three to four months before he left the country in February 2013, and the person responsible was a local thug associated with some sort of political party; whereas in his statement of claims, the appellant indicated that it occurred in 2011. When the delegate put this inconsistency to the appellant, he indicated that the incident occurred at night and he wasn’t sure whether it was in 2011, 2012 or 2013, because the attackers destroyed the family home. The appellant then agreed that there was an incident in 2011, and this was the first time the thugs attacked his house. At another point in the interview, the appellant indicated that the family home was attacked on three occasions, in contrast to the application, where he only mentioned the two occasions in 2011 and 2012, and that the second incident probably occurred in March or April of 2011. He gave no account of the second or third incident and did not specify on which occasion the house was allegedly destroyed and his family was forced to leave the area.

31    Second, the appellant’s statement of claims raised a new claim that there had been previous minor incidents where Muslims had come and taken his crops. The first incident happened when he was 25 – 26 years old. The appellant added that the Muslims threatened him on these occasions, saying “your brother has left the country now we need you to leave the country”: IAA at [14]. The manner of these threats regarding his brother was also said to be inconsistent with the appellant’s previous claims that he lived with his brother on the farm until 2012.

32    Third, when describing the 2011 incident, the appellant stated that masked Muslims came to his house, destroyed some of the family furniture, hit him, ransacked the property and demanded that he leave the country. The appellant initially stated that he did not recognise the attackers, but subsequently stated that he believed the attackers were people from a local thug’s group which had previously threatened him on a couple of occasions. He claimed they threatened him, saying that because his brother had left the country, he now had to do the same. When the delegate put to the appellant that, according to his visa application, his brother was present at the time of the incident and not outside Bangladesh, the appellant responded that his brother had left the home village and was at his sister-in-law’s family home at the time of the 2011 incident.

33    Fourth, in his visa application, the appellant stated that his brother had disappeared from the appellant’s wife’s family home after the appellant returned to the farm in 2012. However, when questioned about his brother’s whereabouts at the beginning of the interview, the appellant stated that his brother, his sister-in-law and their children used to live with his sister-in-law’s family, but since his arrival in Australia, the appellant has been unable to contact his brother by mobile and does not have his sister-in-law’s contact details, so he’s unsure of his brother’s current whereabouts.

34    Fifth, following the attacks on his home, the appellant stated that he was hit and threatened with a pistol on the road while returning to the house. When the delegate indicated that this incident was not mentioned in his statement of claims and appeared to conflict with his claim to have moved to his parents-in-law’s house after Muslims destroyed his own home in 2012, the appellant responded that he returned to the family house to observe if there had been any improvement in the situation, but was unable to return to the family home, and that the farm had been taken over. When the delegate further put it to the appellant that this conflicted with his visa application, where he claimed a pistol was held to his head after he returned to the farm, the appellant stated that the Muslims held a pistol to his head twice: once on the road when they hit him, and once in his family home when they just threatened him: IAA at [14]. The appellant claimed that the last incident at the family home occurred three to four months prior to his departure from Bangladesh and that he lived with his parents-in-law during that time, but secretly visited the family home to see if he could live there.

35    Taking these inconsistencies into account, the IAA was not satisfied: that the appellant’s house was specifically targeted as claimed; that he was forced to leave the area and live with his parents-in-law; and that he was threatened with a pistol. The IAA agreed with the delegate that it was implausible that the appellant would be unable to recall when the attacks on his family home occurred, particularly given that he claims his house was destroyed and the family was forced to live with his parents-in-law. The IAA noted inconsistencies between the appellant’s account of his brother’s whereabouts and, in an entry interview, the appellant volunteering his brother’s contact details as his emergency contact and identifying his brother’s address as being in their home village. The IAA considered it “implausible” that the appellant would have continued working as a welder in the same area and travelled approximately 35 miles to work on a daily basis until his departure if he had previously received threats.

36    Given all of these issues with the appellant’s account, the IAA reached the following conclusions at [16]:

I am not satisfied with the overall credibility of his claim to have been threatened, attacked and the family land being taken from him and his brother. Nor am I satisfied that his brother is missing as claimed. I am not satisfied that the applicant was threatened, or that the family home was attacked and destroyed, or that the family land has been taken over as claimed.

37    The IAA then made an assessment of whether the appellant was a refugee for the purposes of the Act.

38    Having found that the appellant was a Bangladeshi citizen despite not holding an NIC, the IAA was satisfied there was not a real chance he would be harmed due to being stateless. Further, given the IAA had already rejected that the appellant’s family’s land was taken and that he was subjected to threats by local Muslims, the IAA was not satisfied that the appellant would be targeted on return for this reason.

39    In relation to the refugee claim, the IAA then considered whether the appellant would otherwise be at risk of harm as a Hindu: IAA at [21]. The IAA had regard to a Department of Foreign Affairs and Trade (DFAT) report dated 5 July 2016 entitled “Bangladesh Country Information Report” (“the DFAT July 2016 Report”); a US Department of State report dated 14 October 2015 entitled “2014 Report on International Religious Freedom – Bangladesh” (“the USDS October 2015 Report”); and a US Department of State report dated 13 April 2016 entitled “Bangladesh – Country Reports on Human Rights Practices 2015” (“the USDS April 2016 Report”).

40    The IAA noted DFAT’s assessment that Hindus are subjected to moderate levels of societal violence, especially during periods of heightened political tension such as national elections, and also had regard to DFAT’s summary of attacks on Hindus in the lead up to and following the 2014 elections, in which hundreds of Hindu homes and businesses were destroyed, such violence being most prevalent in northwest Bangladesh. The IAA accepted that there have been outbursts of violence against Hindus which, according to DFAT, increased during periods of heightened political tension such as elections, including in the appellant’s home district, but found there was no evidence to indicate these attacks were condoned by the Bangladeshi government, noting that, in 2014, the government provided assistance to victims and helped communities restore religious and private property. Given the appellant’s lack of political activity or involvement, the IAA found the appellant would not be imputed with a political opinion on return simply for being a Hindu. The IAA also found there was no evidence to suggest there have been targeted attacks on Hindus in the appellant’s district by extremists or that there is a real chance the appellant would be targeted there because of his religion, or that he would be targeted as a returnee asylum seeker.

41    The IAA then considered the appellant’s complementary protection claim. The IAA re-iterated its earlier analysis, particularly its rejection of the appellant’s claims to be stateless and to have been targeted by Muslims in his home village, and also concluded that the appellant does not face a real risk of suffering significant harm on return to Bangladesh as a Hindu or as a returnee asylum seeker. The complementary protection claim was therefore dismissed, and the delegate’s decision not to grant a protection visa affirmed.

42    In his application to the Federal Circuit Court, the appellant relied on the following ten grounds:

1.    THE APPLICANT IS A CITIZEN OF BANGLADESH;

2.    THE APPLICANT CLAIMED THAT AUSTRALIA OWED PROTECTION OBLIGATIONS IN RESPECT OF HIM

3.    THAT THE DECISION OF THE SECOND RESPONDENT THE IAA WAS AFFECTED BY LEGAL ERROR

4.    THE APPLICANT CLAIMS TO FEAR PERSECUTION FROM THE BANGLADESH NATIONAL PARTY (BNP) AND AWAMI LEAGUE (AL)

5.    THE APPLICANT FEARS PERSECUTION AND THERE IS A REAL CHANCE THAT THE PERSON WOULD BE PERSECUTED

6.    THE REAL CHANCE OF PERSECUTION RELATES TO ALL AREAS OF THE RECEIVING COUNTRY

7.    THE PERSECUTION INVOLVES SERIOUS HARM AND SYSTEMATIC AND DISCRIMINATORY CONDUCT

8.    THE ESSENTIAL AND SIGNIFICANT REASONS FOR THE PERSECUTION IS RACE, RELIGION, NATIONALITY, MEMBERSHIP OF A PARTICULAR SOCIAL GROUP

9.    THE APPLICANT DOES NOT HAVE A WELL-FOUNDED FEAR

10.    RELEVANT INFORMATION NOT CONSIDERED

43    On 8 November 2018, the primary judge dismissed the application. His Honour made the following findings at [16] – [21]:

[16]     The application filed on behalf of the applicant identified 10 grounds for review. The first nine grounds variously assert factual errors and matters related thereto, as well as a re-statement of the applicant’s claims that he feared persecution should he be returned to Bangladesh, the applicant also alleging that he would suffer serious harm and systematic and discriminatory conduct if he was returned to Bangladesh. Those matters are the subject of what would be required to be undertaken in the nature of an impermissible merits review and are without substance.

[17]     The tenth ground alleges “relevant information not considered”. The lack of particularity of such ground is, in itself… a disqualifying factor, but the first respondent has treated such ground as at least a valid ground for the purpose of argument. In that regard, however, it can be seen that the Authority did consider the applicant’s claims by reference to the legislative criteria, and that it made findings of fact that were open to it for the reasons which it gave. Those reasons were logical and causally directed to the claims made by the applicant.

[18]     The Authority found that the applicant did not meet the definition of “refugee” under the Act, and found that the applicant did not meet any of the protection criteri[a] under the Act. The findings were not ones which no rational or logical decision-maker could arrive at on the same evidence (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]).

[19]    Nor did the authority’s reasons lack “an evident and intelligible justification” (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]).

[20]     The Authority complied with its procedural fairness obligations in Division 3 of Part 7AA of the Act, which is the exhaustive statement of the natural justice hearing rule in relation to reviews undertaken by the Authority.

[21]    There is no merit to the application for review. It is ordered that the application be dismissed.

44    On 23 November 2018, the appellant filed a Notice of Appeal in this Court, raising four grounds of appeal.

45    On 9 May 2019, the appeal proceeded to an oral hearing. At that stage, the appellant had not filed a written outline of submissions. The appellant, through an interpreter, informed the Court he had neither received the appeal book nor the Minister’s submissions. The matter was adjourned for a month to give the appellant the opportunity to obtain assistance from a friend from Melbourne, so that he could understand the Minister’s submissions and prepare his own.

46    The appellant then filed two written outlines of submissions on 5 June 2019. The first document is labelled “THE APPLICANT’S WRITTEN ARGUMENTS’, and the second, “Outline of Applicant Submission.” They are referred to in these reasons, respectively, as the “Appellant’s Written Arguments” and the “Appellant’s Outline”.

Ground One

47    Ground one provides:

1.    The judge of the Federal Circuit Court in his honourable judgement delivered on the November 08, 2018 failed error of law and relief under the judiciary Act. He failed to find that the Immigration Assessment Authority IAA has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt.

48    By this ground the appellant alleges that the primary Judge fell into error in failing to find jurisdictional error on the part of the IAA, as the primary Judge failed to find that the IAA failed to identify (or address) the evidence relied on by the appellant in support of his claims and thus the appellant asserts that the IAA’s decision is open to “sufficient doubt”. The question is not one of sufficient doubt which suggests an evaluative judgement was required to be made by the primary Judge about the merits of the IAA’s decision. The primary Judge was required to decide whether the appellant had identified error on the part of the IAA amounting to an excess or want of authority to decide the questions in issue in the exercise of the statutory review function. The settled principles governing jurisdictional error do not need to be restated here. The critical matter is that no details are given of the evidence the appellant contends the IAA failed to address. There is simply no content to the ground. An examination of the IAA’s decision reveals that the contentions were comprehensively addressed. This ground is simply an expression of the appellant’s emphatic disagreement with the conclusions reached by the IAA on the merits of each claim. The reference to the notion that the decision of the IAA is open to sufficient doubt is simply an invitation to examine the merits of the decision, rather than address a basis for contending that the IAA engaged in jurisdictional error. The ground invites impermissible merits review : Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35 – 36 per Brennan J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Ground one must fail.

49    Another ground which has some relation to ground one is ground three, in the sense that the appellant says that the IAA failed to address the current situation in Bangladesh as part of the support for his claim to meet the statutory integers of the protection claim and especially whether the IAA could be satisfied that the appellant holds a well-founded fear of persecution on the grounds asserted. It is convenient to address ground three at this point. Ground three is in these terms:

3.     I was denied procedural fairness when the IAA member made opinion based on assumption and possibilities without any proper investigation. The IAA failed to assess the current situation in Bangladesh where thousands of Hindu Religious Minority are arrested and killed by the Government Authority. In assessing danger to me, the IAA undermined the danger I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protection for my life.

50    These allegations assume an obligation on the part of the IAA to investigate the security situation for Hindus in Bangladesh and specifically in relation to the persecution of Hindus by public authorities, and the risks the appellant would face as an asylum seeker returning to Bangladesh. Of course, propositions that the appellant faces a real risk of serious harm, said to be manifested in the particular ways a claimant identifies, must be examined in the exercise of the review function if those matters formed the basis of the claimant’s contentions before the delegate supported by material put before the delegate, which as discussed shortly, is to be referred to the IAA (the review material) in exercising the review function in accordance with the Act. As to that statutory framework, Part 7AA of the Act sets out the statutory regime which is the source of the IAA’s powers and duties in exercising its review function.

51    Section 473CB sets out a list of material which the Minister’s Secretary is required to give to the IAA at the same time as, or as soon as reasonably practicable after, a decision is referred to the Authority.

52    Section 473DB(1) provides:

473DB    Immigration Assessment Authority to review decisions on the papers

(1)     Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)     without accepting or requesting new information; and

(b)     without interviewing the referred applicant.

53    Section 473DC provides:

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 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.

[emphasis added]

54    Finally, s 473DD provides:

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 satisfied 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.

55    Under s 473DB, the IAA was required to conduct its review with reference to the material provided by the Secretary under s 473CB, but without accepting or requesting new information or interviewing the appellant. The IAA had the power, under s 473DC(1), to obtain new documents or information that was not before the Minister which it considered relevant, but importantly, did not have a duty to do so: s 473DC(2). Finally, under s 473DD, the IAA was required not to consider any new information unless it was satisfied that there were exceptional circumstances to justify the consideration of the new information; and the appellant was able to satisfy the IAA that the information was not, and could not have been, provided to the delegate before the delegate’s decision was made, and that the information was credible personal information not previously known, which would have materially affected the consideration of the appellant’s claims had it been known.

56    In this case, the IAA had regard to the material provided by the Secretary: IAA at [2]. On 2 May 2017, the IAA received a submission from the appellant’s representative which refuted a number of the delegate’s findings, and which the IAA had regard to, considering it to be “argument rather than information”: IAA at [3].

57    When considering the appellant’s claimed statelessness from [6] to [9], the IAA had regard to the identity documents provided by the appellant and to country information regarding NICs and Bangladeshi citizenship requirements, namely an April 2003 UK Home Office Country Information Report on Bangladesh and the DFAT July 2016 Report.

58    When considering the appellant’s claimed harassment at the hands of local Muslims due to being Hindu (from [10] – [16]), the IAA engaged in a lengthy analysis of the appellant’s written statements and of country information, specifically a September 2013 UK Home Office Guidance Note on Bangladesh. Thus the contention that the IAA failed to address the current situation in Bangladesh and failed to have regard to the contended harm to which the appellant claimed to be exposed on return is not made out.

59    Moreover, when considering whether the appellant would otherwise be at risk of harm as a Hindu or returnee asylum seeker (from IAA [21] – [29] and [30] – [32] respectively), the IAA engaged in a very detailed analysis, referring to the DFAT July 2016 Report, the USDS October 2015 and April 2016 Reports, a Minority Rights Group International report of November 2016 titled “Under threat: the challenges facing religious minorities in Bangladesh”, and an Ain O Salisk Kendra (ASK) report of 28 March 2017 titled “Human Rights Situation in Bangladesh 2016”. All of this material had been considered by the delegate and provided to the IAA by the secretary pursuant to s 473CB of the Act. Again, it simply is not the case that the IAA failed to address the current situation in Bangladesh or the contended harm to which the appellant claimed to be exposed upon return.

60    The material demonstrates that the IAA conducted an extensive review of the appellant’s claims and had regard to the country information and evidence before it. The IAA was not required to take further steps to obtain any additional documents by way of further independent investigation of the appellant’s claims.

61    For those reasons, ground three must also fail.

Ground Two

62    Ground two provides:

2.    Honourable Judge failed to hold that the IAA made an error of law when it did not take up and separately deal with the factual issues. The IAA failed to find that Hindu Minority is harassed more under present Government. The IAA failed to understand the persecution of Hindu Religion Belief. The IAA member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible.

63    As set out in these reasons, the IAA analysed both the appellant’s accounts of specific incidents where he claimed to have been harmed by Muslims due to being Hindu (from IAA [10] to [16]), and, having rejected this evidence, considered whether he had a well-founded fear of persecution upon return to Bangladesh insofar as he “would otherwise be at risk of harm as a Hindu”: IAA [21] – [29].

64    The Minister submits, and I accept, that absent any explanation as to how those findings were tainted by jurisdictional error, this ground seeks impermissible merits review borne out of disagreement with the findings made in the abovementioned passages.

65    Accordingly, ground two must fail.

Ground Four

66    Ground four provides:

4.    Besides, the Immigration Assessment Authority did not follow the proper procedure as required by the Act in arriving its decision in deciding my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.

67    The Notice of Appeal provides no details at all of the provisions of “the Act” or “regulations” which are said not to have been complied with thus giving rise to jurisdictional error. However, the Appellant’s written material contends that the IAA failed to comply with two sections of the Act.

68    First, the Appellant’s Written Arguments contain an allegation that the IAA failed to comply with ss 424A and 424AA of the Act.

69    Second, the Appellant’s Outline contains a further allegation that the IAA failed to apply the correct test for the complementary protection criterion under s 36(2)(aa) of the Act.

Sections 424A and 424AA

70    In relation to the first allegation, the appellant contends that the IAA took into account information he had given orally to “undermine” his own credibility. In his submission, he contends that he should have been formally put on notice under s 424A or s 424AA of the Act that “such information would be the reason or part of the reason for affirming the decision under review and I should have been advised that I can either orally comment or request [additional] time to respond in writing”: Appellant’s Written Arguments at [4].

71    Sections 424AA and 424A of the Act provide:

424AA    Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)    if the Tribunal does so – the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)     orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)     A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

424A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)    that is non-disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

72    The following observations should be made.

73    First, in relation to the statutory framework, ss 424AA and 424A are contained in Part 7 of the Act, which applies to the review of Part 7-reviewable decisions by the Administrative Appeals Tribunal (“the AAT”): s 409(1). The AAT’s powers in relation to Part 7-reviewable decisions may be exercised by the AAT only in its Migration and Refugee Division: s 409(2). The definition of Part 7-reviewable decisions expressly excludes fast track decisions: s 411(2)(c). While the IAA, in reviewing the fast track decision in the present case, was bound by the requirements under Division 3 of Part 7AA, ss 424A and 424AA are not contained in Part 7AA, and do not apply to reviews conducted by the IAA under Part 7AA of the Act.

74    Second, on the facts, the appellant contends that the IAA was obliged to inform him that it intended to rely on information he had given orally to the “Minister’s Department” in determining whether he was a truthful witness and to give him particulars of that information, and that the IAA’s failure to advise him that he could either orally comment or request additional time to respond in writing amounted to jurisdictional error.

75    As to the first assertion that the IAA was obliged to give the appellant copies of the information provided to the IAA by the Minister upon which the IAA sought to rely, s 473DA(2) makes it clear that the IAA was under no such duty.

76    As for the second complaint, that the IAA failed to invite the appellant to comment on the information provided by the appellant to the Minister, s 473DE(1)(c) makes it clear that the IAA would only be required to invite the appellant to comment on new information which had been sought by the IAA under s 473DC(1), which did not occur, and which, in any event, the IAA was under no obligation to get, request or accept: s 473DC(2). The IAA was under no obligation to invite the appellant to comment further on his own oral evidence previously provided to the Minister’s delegate.

Section 36(2)(aa)

77    The appellant further submits that the IAA failed to apply the correct test in determining his claim for complementary protection under s 36(2)(aa) of the Act. In the Appellant’s Outline, the argument is made in the following terms on p. 3:

The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958 The Tribunal made an error when it did not follow Rules of Real Risk Test of persecution and harm. The Tribunal failed to Assess my fear of persecution in pursuance to current explosive situation in Bangladesh which has been highlighted in all of the world.

78    In determining whether Australia had complementary protection obligations in respect of the appellant under s 36(2)(aa) of the Act, the IAA was required to consider whether it was satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh, there is a real risk that the appellant will suffer significant harm. Section 36(2A) sets out five classes of harm which would constitute “significant harm”.

79    From [34] – [35], the IAA set out those requirements using the correct statutory language. From [36] – [37], the IAA analysed the appellant’s claim for complementary protection and applied the correct test, before dismissing the appellant’s claim at [38] on the basis that:

… There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

80    Accordingly, the appellant has not demonstrated any jurisdictional error arising from a contended failure to comply with ss 424A, 424AA or a contended failure to apply the correct test required by 36(2)(aa) of the Act. Ground four must also therefore fail.

Additional Arguments

81    In his two written outlines of submissions, the appellant raised eight additional arguments for the first time. These arguments were not confined to the grounds in his notice of appeal.

82    Ordinarily, an appeal is conducted by way of rehearing according to the correction of error principle, within the limits of the grounds of appeal identified by an appellant, as discussed by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541. Where such allegations are raised for the first time on appeal, the appellant requires leave to rely upon them: Coulton v Holcombe (1986) 162 CLR 1.

83    However, given the appellant was self-represented and had poor English skills, I have considered the following contended errors raised in his written submissions and the Minister’s short response to each allegation, contained in its supplementary outline of submissions filed on 13 June 2019. Formally, I note the Minister opposes leave and, if leave is granted, seeks the opportunity to be elaborate further on its responses to these arguments.

84    The Appellant’s Written Arguments raised:

(1)    a complaint that the IAA refused to hear from the appellant; and

(2)    a complaint that the IAA failed to make inquiries to verify the authenticity of documents the appellant provided to the IAA.

85    The Appellant’s Outline raised:

(3)    an allegation that the IAA failed to consider integers of the appellant’s claims and failed to take into account all of the appellant’s evidence;    

(4)    an allegation that the IAA failed to provide the appellant with sufficient time to expand his arguments at the interview and hearing;

(5)    an allegation that the IAA made its decision with a closed mind;

(6)    a complaint regarding a letter of similar terms being sent to a recent High Court case and a complaint that the letter was misleading;

(7)    a contention that the IAA failed to take into account the appellant’s Hindu faith; and

(8)    a complaint regarding the IAA’s finding that the appellant could relocate within Bangladesh.

86    First, the appellant contends that “the IAA’s refusal to hear from me was based on no evident or intelligible justification and was an unreasonable exercise of discretion”: Appellant’s Written Arguments at [10]. This claim can be found immediately after the passage containing the argument in relation to ss 424A and 424AA, discussed under ground four above. If, however, this argument reflects a separate contention that the IAA breached its obligation to “hear” testimony from the appellant or otherwise hear and consider the materials before the IAA, the following matters should be noted. Under s 473DB(2) of the Act, subject to Part 7AA, the IAA is required to review a fast track reviewable decisions on the papers without interviewing the referred applicant. Also, as mentioned above, the IAA was under no obligation to get, request, or accept any new information, whether the IAA was requested to do so by the appellant, or by any other person, or in any other circumstances: s 473DC(2). Accordingly, this argument must fail.

87    Second, the appellant makes the following submissions in his Written Arguments at [11] – [13]:

11.    I provided documentary evidence to the IAA in relation to the application. The IAA questioned the credibility of me and failed to make enquiries to verify the authenticity of the documents. I provided document and the IAA could have easily verified those documents by contacting the authors of those letters in relation to the commitment of me.

12.    I provided supporting documents. The IAA noted that there was country information indicating that documents can be fabricated, and it would have to weigh up that information together with credibility concerns.

13.    In Minister for Immigration and Citizenship v SZIAI & Anor [2009] FICA 39 at [25] where their Honours of the High Court commented in respect of the obligations of a IAA: Although decisions in the Federal Court concerned with a failure to make obvious enquiries have led to references to a ‘duty to enquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the IAA by the Migration Act is a duty to review.

88    As discussed at [57] above, on 2 May 2017, the IAA received a submission from the appellant’s representative which refuted a number of the delegate’s findings and to which the IAA had regard, considering it to be “argument rather than information”: IAA at [3]. The appellant provided no further documentary evidence to the IAA. Accordingly, this argument must fail.

89    Third, the appellant contends the IAA failed to consider all integers of his claims and failed to take into account all of his evidence. This contention is expressed in the Appellant’s Outline in the following terms:

The Tribunal made a jurisdictional error when it failed to consider each integer of my claims or failed to take into account the whole of the oral and written evidence

90    The appellant has not particularised which integer(s) of his claim(s) or which part(s) of his oral or written evidence were not considered by the IAA. The failure to particularise a ground of review is itself a sufficient basis to dismiss that ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, [35] per Gilmour J, citing WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] as upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969. As set out in these reasons, the IAA had regard to the arguments contained in the appellant’s further submissions, and conducted a detailed analysis of the appellant’s claims and evidence: see [27] – [41] in these reasons. Absent any indication as to which particular integer(s) of the appellant’s claim(s) or part(s) of his evidence were not considered, the basis for this argument is unclear and, accordingly, it must fail.

91    Fourth, the appellant contends the IAA failed to give him sufficient time to expand his arguments at the “Tribunal Interview and Tribunal hearing”. This argument is particularised as follows:

Particular: During Tribunal Interview and Tribunal hearing I gave oral and written the evidence why I targeted by the Authority. I wanted to justify that my family are targeted by the Authority because I am the Hindu particular social group.

I claims that I was denied natural justice and procedural fairness when I was not given enough time through which I could expand my arguments. The Tribunal did not account this incident and nature and proceedings of my interview.

92    The observations made above in relation to additional argument (1), being the alleged refusal to hear from the appellant, also apply here. The IAA elected not to obtain new information from the appellant, as is within its power, and conducted its review on the papers in accordance with the statutory framework. The IAA was not under an obligation to invite further oral testimony or argument from the appellant. I also note there is no reference, in the material, to the appellant asking for the opportunity to provide further argument or evidence in either his interview or his written submission to the IAA. Accordingly, this argument must fail.

93    Fifth, the appellant contends the IAA made its decision with a “closed mind.” This contention is expressed in the following terms,

The Tribunal made an error when it discarded all the oral and written submission without giving any solid evidenced of cumulative credibility concern in the finding of reasons. The Tribunal made decision with closed mind.

Particular: In the decision, the Tribunal found that there were some inconsistency between I gave at the Tribunal hearing and my written claims and the statements I made at the protection interview. My claims that I misunderstood and responded to the questions posed by the Tribunal in a situation of nervousness and distress, because I came by boat as an illegal maritime entry.

[appellant’s original emphasis]

94    The general contentions of a failure to consider the appellant’s oral and written submissions have already been considered. The new argument which arises here is a general allegation of bias. I will consider both actual and apprehended bias.

95    The appellant’s primary allegation appears to be one of actual bias, given his assertion that the decision-maker had a “closed mind”, which seemingly implies that she had negatively prejudged the merits of the appellant’s claim, was committed to dismissing it, and thus “discarded all the oral and written submission” the appellant presented regardless of its merit.

96    The test for actual bias is contained in the following passage from the reasons of Gleeson CJ and Gummow J (Hayne J agreeing) in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531 – 532 at [72] (“Jia Legeng”), citing Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 91 per Deane J, 100 per Gaudron and McHugh JJ; and Johnson v Johnson (2000) 201 CLR 488:

The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

97    An assertion of actual bias must be distinctly made and clearly proven: Jia Legeng, 531 at [69] per Gleeson CJ and Gummow J; 546 at [127] Kirby J agreeing. Here, the allegation is broadly made without reference to any passage or passages of the IAA’s reasons where the requisite state of mind on the part of the decision maker clearly emerges. I am not satisfied, having read the IAA’s reasons and having examined the analysis it undertook, set out comprehensively in those reasons, that the decision-maker was committed to dismissing the appellant’s application or that her state of mind was incapable of alteration, regardless of the evidence or arguments presented by the appellant. The allegation is nothing more than, and rises no higher than, a bare allegation unsupported by any content or analysis of the basis for the claim.

98    In terms of apprehended bias, a decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue, and the conduct complained of: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223, 235 at [37] per Rares and Jagot JJ citing Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; 179 ALR 425 at [28] – [29] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14] – [21] per Allsop J, with whom Moore and Tamberlin JJ agreed.

99    Again, no particulars of the basis upon which a fair-minded lay person might so apprehend emerge from the Appellant’s Written Arguments or the Appellant’s Outline, and I am not independently satisfied, having regard to the IAA’s reasons and the analysis contained in these reasons, that such an allegation is even open, let alone made good. This argument must fail.

100    Sixth, the Appellant’s Outline contains the following complaint at p. 4:

I believe that my application has not been taken into consideration properly - the decision made by the Tribunal was relied upon some general facts; therefore, establishes a ‘denial of procedural fairness’. It appears to me that a letter in similar terms had been sent to a recent high court case. I further believe that the letter provided by the Tribunal is misleading – because the Tribunal had not read all the documents thoroughly upon which the original decision-maker (Tribunal) had relied, in particular the documents, providing country information, and various materials in relating to establish my claim.

101    In response, the Minister submits at [18] that, “… the appellant’s complaint about a ‘letter of similar terms being sent to a recent high court case’ and a complaint that that letter was misleading (p 4), without particulars, is incapable of a meaningful response.”

102    Neither the letter nor the decision of the High Court to which the appellant refers is clear from the written material. Without further particulars, I accept the Minister’s submission. This argument must fail.

103    Seventh, the appellant contends that the IAA failed to take into account his Hindu faith. Persecution on the basis of his Hindu faith, along with harm stemming from his alleged statelessness, formed the two central bases of the appellant’s claims. The IAA devoted the majority of its reasons to these considerations.

104    In addition to the matters already mentioned in relation to ground two, which raises a very similar contention, I note the following. At [1] and [4], the IAA identified the appellant’s claim to be a Hindu, which was accepted at [10]. From [10] – [16], under the subheading “Hindu”, the IAA considered the appellant’s accounts of events where he was allegedly persecuted by local Muslims due to his faith, which were ultimately rejected at [16]. As discussed from [39] – [40] in these reasons, having dismissed the appellant’s account of events which allegedly occurred in his hometown (from [21] – [29]), the IAA engaged in a detailed analysis of “…whether the applicant would otherwise be at risk of harm as a Hindu”: IAA at [21].

105    The allegation that the IAA failed to have regard to the appellant’s Hindu faith is clearly without merit.

106    Eighth, the Appellant’s Outline contains the following complaint at p. 7:

The Tribunal tried to mention that for safe of my life I can relocate any other part of Bangladesh. But the reality is that the geography Country area like Bangladesh is very small like in an area like very similar to Tasmania of Australia.

107    This is not a case where, for example, the IAA affirmed the Delegate’s decision in relation to complementary protection on the basis of a finding under s 36(2B)(a) of the Act that, although the decision-maker was satisfied under s 36(2)(aa) that there was a real risk the appellant will suffer significant harm upon return to a particular area of Bangladesh, there was not a real risk the appellant will suffer significant harm in Bangladesh because it would be reasonable for the appellant to relocate to an area of Bangladesh where there would not be a real risk that he will suffer significant harm. No such finding was made. The appellant did not overcome the first hurdle of satisfying the integers of s 36(2)(aa) of the Act, in relation to which the IAA concluded at [38]:

There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

108    Accordingly, this argument must fail.

109    The appellant has failed to establish any of the four grounds of appeal or eight additional arguments raised for the first time in the Appellant’s Written Arguments and the Appellant’s Outline.

110    Leave to raise these further arguments is granted. The appeal is dismissed with costs.

Associate:

Dated:    16 July 2020