Federal Court of Australia

FJE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1352

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    This is an appeal against a decision of the then Federal Circuit Court of Australia (Federal Circuit Court) to refuse the appellant’s application for constitutional writ relief against a decision of the Immigration Assessment Authority that upheld the decision of a delegate of the Minister to reject the appellant’s application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

Background

2    The appellant, a citizen of Bangladesh, arrived in Australia on 30 January 2013, as an unauthorised maritime arrival. On 28 January 2016, and then again on 23 May 2016, the Department advised the appellant that the Minister had lifted the bar in s 46A(1) of the Migration Act 1958 (Cth) against unauthorised maritime arrivals applying for visas by exercising their power under s 46A(2), and invited the appellant to apply for a Temporary Protection (Class XD) (Subclass 785) visa or a Safe Haven Enterprise (Class XE) (Subclass 790) visa. On 15 September 2016, the appellant applied for a Safe Haven Enterprise visa (visa).

3    The appellant was invited to attend an interview with the delegate that was to be held on 3 April 2018, which he attended along with his migration agent. On 4 June 2018, the delegate refused to grant the appellant the visa. On 7 June 2018, the delegate’s decision was referred to the Immigration Assessment Authority (Authority) for review. On 6 July 2018, the appellant provided the Authority with a written submission. On 20 August 2018, the Authority wrote to the appellant and invited his comment on information from his immigration detention records, which indicated that the appellant had been working in Malaysia in around May 2012. This information was before the delegate. On 11 September 2018, the appellant responded to the Authority’s invitation. On 18 September 2018, the Authority affirmed the delegate’s decision not to grant the appellant the visa.

4    On 12 October 2018, the appellant sought judicial review of the Authority’s decision. This application advanced a sole ground of review that the Authority failed to provide the appellant with an opportunity to satisfy it that the new information he had provided to it met s 473DD(b)(i) and (ii) of the Act. The appellant asserted that the Authority had, as a result, “misconstrued” ss 473DC and 473DD of the Act. On 19 December 2019 the application was dismissed by the then Federal Circuit Court: FJE18 v Minister for Immigration & Anor [2019] FCCA 3849.

This appeal

5    On 13 January 2020, the appellant filed a notice of appeal from that judgment and orders made on 19 December 2019. The sole ground of appeal is the same as that which was advanced before the Federal Circuit Court.

6    The appellant appeared before this Court unrepresented, as he did below. He had the assistance of an interpreter. No written submissions were filed in accordance with the orders. However he filed an affidavit on 21 October 2022 attaching further documents in support of his claim. The applicant also made brief oral submissions, primarily pleading his case.

7    In summary, he submitted that his claim is political and based on his security were he to return to his country while the current government is in power. The applicant said he wants to stay in Australia until the Bangladesh National Party comes to power which he anticipates would be in 2024, and then he would return home. He asked that he be allowed to do so.

8    For the reasons below, the appeal is dismissed.

Consideration

9    In the circumstances of the appellant’s submissions, it is appropriate to first consider the additional material he seeks to rely on, being the affidavit he filed four days before the hearing of his appeal, before considering the merits of the single ground of appeal. The appellant explained that it was new material, not previously relied on. His attempt to rely on this evidence must be considered in the context of the limited role of this Court sitting as an appellate court, and that of the then Federal Circuit Court (now Division 2 of the Federal Circuit and Family Court of Australia), hearing an application for judicial review. For the reasons that follow, it is not appropriate for me to admit the affidavit into evidence.

10    The Federal Circuit Court could only have disturbed the decision of the Tribunal under review if that decision was infected by jurisdictional error: Migration Act s 476(1); Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13]. This Court’s appellate function is to ascertain whether there is an error in the decision of the Federal Circuit Court. Neither this Court nor the Court below has the jurisdiction to consider the factual merits of the decision. The issue is not whether this Court or the Federal Circuit Court agrees with the decision. Moreover, this Court is not a forum in which a party may simply reargue the case in the hope of convincing a judge to take a different view of the evidence: DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [21] per Derrington J.

11    This Court may, in limited circumstances, receive fresh evidence on appeal from a decision of the Federal Circuit Court in an application for judicial review of a decision of the Tribunal: s 27 of the Federal Court of Australia Act 1976 (Cth) and r 33.29 of the Federal Court Rules 2011. However, given the limited nature of the hearing before the Federal Circuit Court, fresh evidence cannot be adduced on review to demonstrate an error of fact by the decision maker; nor invite this Court to make findings of fact, turning the application in this Court to a merits review: Ozberk v Minister for Immigration and Multicultural Affairs [1998] FCA 12; (1998) 79 FCR 249 at 254 per Marshall J; AAW16 v Minister for Immigration and Border Protection [2017] FCA 49 at [33] per Bromwich J; CQV16 v Minister for Immigration and Border Protection [2019] FCA 1098 at [46]-[48] per Griffiths J.

12    With these principles in mind, I see no basis for granting leave under s 27 of the Federal Court of Australia Act or r 33.29 of the Federal Court Rules to admit any of the additional documents on this appeal.

13    I turn now to the appeal ground, which, as explained above is the same as that advanced below. I note that the appellant did not address this ground in his oral submissions and, as noted above, did not comply with the order to file written submissions.

14    As the primary judge explained, there was no new information provided by the appellant that the Authority refused to consider and in respect of which the Authority otherwise needed to be satisfied that s 473DD(b)(i) and (ii) of the Migration Act were met.

15    Rather the only new information provided to the Authority was the appellant’s response to the letter inviting him to provide further information. It is apparent from the Authority’s reasons that it was satisfied that the response satisfied the requirements in s 473DD of the Migration Act and, accordingly, considered the response in making its decision.

16    In rejecting this ground below, the primary judge concluded at [10]-[13]:

10. In my view, no ground of jurisdictional error has been made out. The Authority had regard to the submissions of the applicant, finding it was not new information. The Authority determined that the applicant’s response to its letter of 20 August 2018, was new information and the criteria under s 473DD(a) of the Act were met. Accordingly, the Authority considered the information.

11. There was no other new information that was before the Authority that was either rejected or not considered as being new information. The ground of appeal, in my view, is misconceived.

12. I have considered and looked at the decision carefully because the applicant is unrepresented. I am satisfied there was no other jurisdictional error apparent on the face of the record which has not been articulated by the applicant.

13. The applicant asserted that the Authority should have shown him why he was not a BNP supporter. It was explained to the applicant that it was not for the Authority to conduct an inquisition or inquiry into his claims. Rather it was for the applicant to prove his claims to the Authority.

17    No error is demonstrated in that reasoning.

18    As the appellant has not established any error, the appeal should be dismissed with costs.

Associate:

Dated:    15 November 2022