Federal Court of Australia

AYO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 757

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, a citizen of Bangladesh, seeks leave to appeal from a judgment and orders of the Federal Circuit Court of Australia made on 11 September 2019. The primary judge dismissed the applicant’s application for review of a decision of the Immigration Assessment Authority (the IAA) at a “show cause hearing” pursuant to r 44.12 of the Federal Circuit Court Rules 2001. Because the decision of the primary judge was interlocutory (see r 44.12(2)), the applicant requires leave to appeal before he can appeal to this Court.

2    It is convenient to note at the outset the method by which the primary judge provided his reasons for judgment. His Honour gave oral reasons for judgment, but did not subsequently provide written reasons for judgment (whether by way of a revised version of the transcript or otherwise). However, he made an order that the transcript of the oral reasons could be released to any party if so requested, without the transcript being settled by the Court.

3    The listing of this application, which was filed on 25 September 2019, was delayed pending the outcome of certain other proceedings that were potentially relevant given the manner in which the primary judge provided his reasons for judgment. On 4 March 2021, the High Court of Australia delivered judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257. Further, on 18 January 2022, this Court delivered judgment in two cases – BGB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 11 (BGB19) and BFN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 12 (BFN19) – where the same primary judge had adopted the same method for providing his reasons. It was held that, while the practice was to be discouraged (see BGB19 at [31]; BFN19 at [36]), its adoption did not amount to a failure to exercise the judicial power: BGB19 at [30]; BFN19 at [41]. In light of those decisions, no issue arises in the present case concerning the method by which the primary judge provided his reasons for judgment.

4    The matter was listed for the hearing of both the application for leave to appeal and the appeal (if leave is granted). The applicant appeared for himself, with the assistance of an interpreter.

5    For the reasons that follow, the application for leave to appeal is to be dismissed.

Background facts

6    In January 2013, the applicant arrived in Australia by boat. He was treated as an Irregular Maritime Arrival. On 8 February 2013, he had an Irregular Maritime Arrival interview.

7    On 14 December 2016, the applicant applied for a Safe Haven Enterprise Visa, which is a form of protection visa: see the Application Book (titled Bundle of Documents) (AB) 29-76. He provided a statement in support of his application (AB 70-74). In brief summary, the applicant claimed to fear harm from the Awami League as he had witnessed the murder of his uncle and because of his family’s connections with the Bangladeshi National Party (BNP).

8    On 15 October 2018, the applicant attended an interview with the delegate.

9    On 29 October 2018, the applicant’s migration agent provided a written submission.

10    On 8 January 2019, a delegate of the first respondent (the Minister) refused the applicant’s application for the visa (AB 156-172).

11    On 11 January 2019, the matter was referred to the IAA pursuant to Pt 7AA of the Migration Act 1958 (Cth). The applicant did not provide any further material to the IAA.

12    On 21 February 2019, the IAA decided to affirm the decision of the delegate (AB 187-203).

The proceeding in the Federal Circuit Court

13    In March 2019, the applicant applied to the Federal Circuit Court for judicial review of the IAA’s decision. The applicant subsequently filed an amended application dated 3 September 2019, containing two grounds.

14    On 11 September 2019, a show cause hearing took place before the primary judge. The applicant was represented by solicitor and counsel. At the hearing, the applicant did not press or abandoned his second ground of review. At the hearing, the primary judge dismissed the application for review and delivered oral reasons for judgment.

15    The material before this Court includes a “draft” of the primary judge’s reasons for judgment in the format of a judgment of the Federal Circuit Court (AB 207-213). Each page of this document has the word “DRAFT” in large letters, diagonally across the page. I was informed by counsel for the Minister at the hearing that this document was prepared by the solicitors acting for the Minister. It seems that the Minister’s solicitors took the text of the transcript of the primary judge’s reasons and put this into the format of a draft judgment of the Federal Circuit Court. Thus, despite its appearance, the document was not in fact prepared by the Federal Circuit Court. Nevertheless it provides, in effect, the transcript of the primary judge’s oral reasons. The transcript is not otherwise included in the materials before the Court.

The application for leave to appeal

16    The applicant applied for leave to appeal to this Court. At the time the application was filed, the applicant was represented. However, he is no longer represented.

17    The application for leave to appeal contains two grounds. Although there is no draft notice of appeal, I proceed on the basis that the two grounds in the application for leave to appeal represent the proposed appeal grounds. The two grounds in the application for leave to appeal are:

GROUND ONE:

The Authority fell into error by making factual assumptions and conclusions that were not supported by evidence and by failing to articulate the circumstances under which an undocumented person can be returned to the Receiving Country.

Particulars:

a)    I have no passport with me. I had a passport as a child, however, I don’t know where it is and I’ve never had to use it. I did not need it to leave Bangladesh ([“]Passport Claim”)

b)    The Applicant has consistently claimed that he departed Bangladesh unlawfully without a passport throughout the protection application process and I accept that he did so. The applicant has resided in Australia for over five years and has sought asylum.

c)    I have found that the applicant does not face a real chance of suffering harm of any kind or as a returning asylum seeker or returning failed asylum seeker who departed Bangladesh unlawfully without a passport or travel document now or in the foreseeable future.

GROUND TWO:

The Authority fell into error by failing to deal with an integer of the Applicant’s claims leading to a failure to exercise jurisdiction.

Particulars:

a)    I am afraid if I return my parents, elder brother and younger brother will be in danger and be harassed by the Awami League. I believe they are safe because I am in Australia. I believe that if I return to Bangladesh the Awami League will harass my family and thereby force me to return and as a consequence I will be imprisoned.

b)    I am afraid that I would not be protected by anyone, including the authorities because the authorities are connected to the Awami League.

18    These grounds are substantially the same as the grounds in the applicant’s amended application in the Federal Circuit Court.

19    As noted above, at the show cause hearing the applicant abandoned reliance on the second ground. The second ground in the application for leave before this Court therefore raises a new issue that was not relied on before the primary judge. The applicant therefore requires leave to rely on the second ground.

20    At the hearing of the application, the applicant made brief oral submissions with the assistance of an interpreter. The Minister was represented by counsel. The Minister filed an outline of submissions in advance of the hearing and made oral submissions at the hearing.

Applicable principles

21    In determining whether leave to appeal should be granted, the relevant considerations are: whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

Consideration

Ground 1

22    This ground appears to be founded on the applicant’s claim that he departed Bangladesh unlawfully without a passport. It is contended that the IAA fell into error “by making factual assumptions and conclusions that were not supported by evidence and by failing to articulate the circumstances under which an undocumented person can be returned to the Receiving Country”.

23    It may be accepted that the applicant claimed that he departed Bangladesh unlawfully, without a passport.

24    The IAA considered the issues of the applicant being a failed asylum seeker and having departed Bangladesh unlawfully at paragraphs 42-45.

42.    The applicant has consistently claimed that he departed Bangladesh unlawfully without a passport throughout the protection application process and I accept that he did so. The applicant has resided in Australia for over five years and has sought asylum.

43.    DFAT reports that the Emigration Ordinance Act (1982) (EO Act) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the EO Act. DFAT’s report from 2016 indicates that DFAT is not aware of any incidence of enforcement of these provisions and there is no indication in the 2018 report that this has changed. There is no country information in the review material to support that the Bangladeshi authorities enforce the EO Act against returning Bangladeshi asylum seekers or that they specifically target BNP supporters. I am not satisfied that the applicant faces a real chance of any harm in Bangladesh on the basis of having departed illegally.

44.    Bangladesh accepts both voluntary and involuntary returnees. The International Organisation for Migration’s Assisted Voluntary Returns and Repatriation program assists Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT has no evidence to suggest that recent returnees from likeminded countries have received adverse attention from authorities or others. DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.

45.     I have not accepted that the applicant had any profile of adverse interest to any [Awami League] cadres, supporters or party members when he left Bangladesh and I am not satisfied that he would be viewed as having any such profile upon return. I am not satisfied that the applicant faces a real chance of any harm in Bangladesh as a returning asylum seeker or a returning failed asylum seeker who departed unlawfully.

(Footnotes omitted.)

25    Further, in the context of the considering the complementary protection criterion, the IAA stated at paragraph 50:

50.    I have found that the applicant does not face a real chance of suffering harm of any kind or as a returning asylum seeker or returning failed asylum seeker who departed Bangladesh unlawfully without a passport or travel document now or in the foreseeable future. There is, similarly, no real risk that the applicant would suffer significant harm upon his return to Bangladesh.

26    It is apparent from the above that the IAA considered the claim that the applicant left Bangladesh unlawfully without a passport. There does not appear to be any arguable error in the IAA’s reasoning in this regard.

27    The applicant does not appear to have made a distinct claim that, because he does not have a passport, he would face difficulty in returning to Bangladesh (for example, because there would be an issue regarding his citizenship or nationality). Indeed, he stated that he was a citizen of Bangladesh (AB 46), which the IAA accepted (at paragraph 8 of its decision). It was therefore unnecessary for the IAA to consider any such a claim.

28    If and to the extent that the applicant contends that the IAA erred by not considering issues concerning his citizenship or nationality, it does not appear that the applicant, before the delegate or the IAA, raised any issues regarding his citizenship or nationality. As noted above, the applicant stated that he was a citizen of Bangladesh. It was open to the IAA to proceed on that basis.

29    I do not consider this ground to have sufficient prospects of success to warrant a grant of leave.

Ground 2

30    This ground was abandoned at the hearing before the primary judge (when the applicant was represented). This means that it would raise a new point on appeal, requiring leave. However, I put that to one side for present purposes.

31    I do not consider this ground to have sufficient prospects of success to warrant a grant of leave. The applicant contends that the IAA erred by “failing to deal with an integer of the Applicant’s claims”, namely that his family would face danger and harassment from the Awami League if he returned to Bangladesh. The difficulty with this contention is that the IAA considered and rejected the proposition that the applicant was at risk from the Awami League (see, in particular, paragraphs 23, 30, 39). That proposition is the foundation for ground 2, which concerns the risk to the applicant’s family.

32    For these reasons, this ground does not provide a basis for a grant of leave to appeal.

Conclusion

33    For these reasons, the application for leave to appeal is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore also make an order that the applicant pay the Minister’s costs, to be fixed as a lump sum.

Associate:

Dated:    1 July 2022