Federal Court of Australia

AEN20 v Minister for Immigration and Multicultural Affairs [2024] FCA 979

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs in the amount of $8,323.00.

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

REASONS FOR JUDGMENT

DOWNES J:

1    This is an appeal from a decision of the (then) Federal Circuit Court of Australia in AEN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2795 (judgment).

2    The appellant is a citizen of Bangladesh who applied for a Safe Haven Enterprise visa (Class XE) (subclass 790) (SHEV) on 26 May 2017. The appellant’s claims for protection are based on a fear of harm from Bangladeshi authorities and supporters of the Bangladesh Nationalist Party and Awami League due to his claimed involvement in political meetings and related circumstances, his status as a person charged with weapons offences and his status as a failed asylum seeker.

3    On 1 November 2019, a delegate of the first respondent (the Minister) refused to grant the appellant a SHEV under s 65(1)(b) of the Migration Act 1958 (Cth) (delegate’s decision).

4    As the delegate’s decision is a “fast track reviewable decision” (as defined in s 473BB of the Migration Act), it was referred to the Immigration Assessment Authority (the Authority) pursuant to s 473CA of the Migration Act for review under Pt 7AA of the Migration Act on 6 November 2019.

5    On 6 December 2019, the Authority affirmed the delegate’s decision not to grant the appellant a SHEV pursuant to s 473CC(2)(a) of the Migration Act (Authority’s decision or AD).

6    The appellant sought judicial review of the Authority’s decision. The primary judge dismissed the appellant’s judicial review application with costs on 13 October 2020. That decision is the subject of the present appeal.

7    The appellant’s Notice of Appeal comprises new grounds of appeal (except for ground 4) that were not advanced by the appellant before the primary judge. For that reason, the appellant requires leave to advance these new grounds of appeal. I have proceeded on the basis that the appellant seeks that leave.

8    For the reasons that follow, the application for leave to advance the new grounds of appeal is dismissed, and the appeal is otherwise dismissed with costs.

The appellant’s material

9    The appellant filed a Notice of Appeal on 30 October 2020 which sets out four grounds of appeal and seeks orders that (inter alia) the judgment be set aside and the matter be remitted to the Authority to be dealt with according to law.

10    The appellant did not file written submissions. For these reasons, I will treat the appellant’s Notice of Appeal as written submissions. During the hearing, the appellant made brief oral submissions. However, these submissions concerned the merits of the appellant’s application for protection and did not refer to any error of the primary judge or the Authority, thereby inviting me to engage in impermissible merits review. For that reason, I do not address the appellant’s oral submissions in the reasons that follow.

Leave to advance new grounds on appeal

11    Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interest of justice to do so. Some relevant considerations were set out in Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 at [23] (Nicholas, Thomas and Downes JJ) as follows:

(1)    whether there is an adequate explanation for the failure to raise the ground below;

(2)    the merits of the proposed ground;

(3)    the “potential vindication of a just outcome” and the gravity of the consequences of the decision not to permit the ground to be advanced;

(4)    any prejudice to the respondent if the new ground is allowed to be advanced;

(5)    whether the new ground raises a matter that could have been met by evidence.

(Citations omitted.)

12    The appellant has not provided any explanation for the failure to raise those grounds of appeal below. This tells against leave being granted.

13    Most significantly, the grounds of appeal set out in the Notice of Appeal are wholly without merit for the reasons that follow. Accordingly, even if leave had been granted, the appeal would have been dismissed for the same reasons.

Ground 1

14     By ground 1 of the Notice of Appeal, the appellant claims:

Hon. Judge STREET of the Federal Circuit Court failed to hold that Immigration Assessment Authority (IAA) I [sic] committed a jurisdictional error when it failed to take relevant considerations because it ignored its statutory duty to review the delegate’s decision and made decision on irrelevant facts and findings.

15    The appellant has not articulated which relevant consideration that he contends the Authority failed to take into account. In any event, I do not consider that the Authority failed to take into account any “relevant consideration”, being a consideration which the Authority was “bound” to take into account in making the decision: see Greenpeace Australia Pacific Pty Ltd v Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency (2002) 125 FCR 186; [2002] FCA 1144 at [69] (Beaumont J) citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J, as his Honour then was, with whom Gibbs CJ and Mason J agreed).

16    The appellant has also failed to articulate the “irrelevant facts or findings” on which he submits the Authority made its decision. I do not consider any of the facts or findings upon which the Authority’s decision is based to be irrelevant to the Authority’s determination of whether the appellant satisfied the SHEV criteria.

17    Insofar as the appellant contends that the Authority “ignored its statutory duty to review the delegate’s decision”, this contention has no substance. Section 473CC(1) of the Migration Act imposes a duty on the Authority to “review a fast track reviewable decision referred to the Authority”. The task of the Authority under this provision is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [17] (Gageler, Keane and Nettle JJ). There is nothing in the Authority’s decision to indicate that it did anything other than assess the appellant’s eligibility for a SHEV afresh and for itself, and the appellant has not identified any part of the decision that indicates otherwise.

18    For these reasons, ground 1 lacks merit and would fail if leave was granted.

Ground 2

19     By ground 2 of the Notice of Appeal, the appellant contends:

Hon. Judge Street failed to hold that IAA in making assessment it discared all oral and written evidence of appellant’s claim for protection vis without any reasonable reasons to discard. The IAA used “scope and meaning of New Information” narrowly and unreasonably . The IAA used “New Information” as a tools to discard the any evidence before the IAA. The appellant expexted from the IAA that it would act same like any Tribunal or Court , but the IAA’s role and conduct of processing appellant’s matter was more like a the Police office . The purpose of the formation of IAA was more administrative than judicial. His Hon. failed to hold that the conduct of the IAA member in assessing his matter may be treated as a jurisdictional error .

(Errors original.)

20    To the extent that I am able to comprehend this ground, which I note was not expanded on in oral submissions, the appellant’s contention that the Authority discarded “all” of his oral and written evidence without any reasonable reason to do so is without merit. Aspects of the appellant’s evidence were accepted, and it is well established that the Authority is not required to accept, uncritically, all of an appellant’s evidence: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24] (Perry J).

21    It cannot be accepted that the Authority’s decision to reject aspects of the appellant’s evidence reaches the standard required for legal unreasonableness, that being that the decision was so unreasonable that no reasonable person could have so exercised the power: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388–389 (Mason CJ), 400 (Dawson J), 431 (McHugh J).

22    The Authority’s decision plainly engages with the evidence advanced by the appellant including (inter alia) the information provided in his application and his statutory declarations, identity documents and oral evidence: see, for example, AD [7], [10] and [20]. The Authority also identified instances where the appellant provided no evidence in support of certain contentions: see AD [15].

23    Underpinning this ground of appeal (and also ground 3 below) appears to be a desire to seek review of the adverse findings made by the Authority as to the appellant’s credibility. However, none of the recognised grounds upon which an adverse credibility finding might be successfully challenged can be made out here: see DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [30] (Kenny, Kerr and Perry JJ).

24    To the extent this ground of appeal concerns the Authority’s use of the “scope and meaning of new information”, this phrase does not appear in the Migration Act nor in the Authority’s reasoning. As to “new information” generally, s 473DD of the Migration Act sets out the (exceptional) circumstances in which the Authority may consider new information in relation to a fast track reviewable decision.

25    I consider that the Authority’s decision correctly identified and applied the whole of the provisions of s 473DD. The Authority found that the document entitled “Note on Burden and Standard of Proof in Refugee Claims”, published by the United Nations High Commissioner for Refugees (UNHCR) on 16 December 1998, was “new information” which does not satisfy the requirement of s 473DD and therefore could not be considered by the Authority: at AD [4]. In circumstances where that document pre-dated the delegate’s decision by 20 years, did not relate to the appellant specifically, and the appellant’s legal representative made no attempt to explain why it had not been put before the delegate, the Authority’s finding that the requirements in s 473DD had not been made out was plainly open to it.

26    The nature of the appellant’s complaints regarding the Authority’s “role and conduct” is unclear. To the extent that submission can be understood as an implicit allegation of apprehended or actual bias, no such contention has been established: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] (Gleeson CJ and Gummow J) and [127] (Kirby J). An allegation of bias must be “distinctly made and clearly proved”. This is not the case here, as the appellant has made no clear allegation of bias nor is there any evidence to suggest the Authority was affected by bias. Otherwise, the appellant’s “expectations” about how the Authority might have functioned are immaterial in circumstances where there is no evidence or suggestion that the Authority misled him as to its operations, nor any evidence that the Authority failed to undertake its “review” function.

27    Ground 2 therefore lacks merit and would fail if leave was granted.

Ground 3

28     Ground 3 of the appellant’s Notice of Appeal states:

The appellant claims that he was denied procedural fairness and natural justice when s Hon. Judge Street failed to hold that the IAA did not give chance to clarify the inconsistencies in assessing the credibility findings of his oral and written evidence’. Binding of the IAA to make decision within three months period (Fast Track System) does not reflect impartiality in a Court or Tribunal of a democratic country

(Errors original.)

29    I am unable to accept the appellant’s contention that he was denied procedural fairness on the basis that he did not receive a chance to clarify inconsistencies in his oral and written evidence. The appellant was given an opportunity to make submissions to the Authority through which he was presented with an opportunity to clarify any inconsistencies in his evidence. The appellant did so through his legal representatives, providing written submissions to the Authority on 25 November 2019. These explicitly included submissions as to his credibility. In its decision, the Authority expressly considered those submissions.

30    The second part of ground 3 is difficult to comprehend and the appellant did not expand on this during the hearing before me. The appellant has not identified any rule which requires the Authority to determine reviews within three months.

31    In any event, the Authority delivered its decision on 6 December 2019 which is one month after the Authority received the referral from the Department of Home Affairs and 11 days after the appellant filed written submissions in support of his application.

32    If, on the other hand, the appellant intends to submit that the short time frame in which the Authority took to consider the review application does not reflect impartiality, I reject this contention. There is no evidence that the Authority’s decision-making process lacked impartiality. In carrying out its functions under the Migration Act, the Authority must “pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”: s 473FA(1). That is what it did in this case.

33    As such, ground 3 lacks merit and would fail if leave was granted.

Ground 4

34    Ground 4 of the appeal is as follows:

Hon Judge failed to hold that the IAA failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36 (2) (aa) of the Migration Act The AAT did not follow Rules of Real Risk Test of Persecution and harm ..

(Errors original.)

35    Section 36(2) of the Migration Act states that a criterion for a protection visa is that the applicant is (inter alia):

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm …

36    Although the appellant does not require leave to advance ground 4, it must fail for the following reasons.

37    The Authority’s decision correctly refers to and applies the test for complementary protection, being whether there is a “real risk” of “significant harm” within the meaning of s 36(2)(aa) of the Migration Act.

38    Before it turned to consider complementary protection in s 36(2)(aa), the Authority considered whether the appellant faced a “real chance” of harm on the basis of any actual or imputed political opinion, because he departed Bangladesh illegally or because he sought asylum in Australia. The question of “real chance” is the test that is applied on an application for a protection visa under s 36(2)(a) when considering whether the applicant has a well-founded fear that they will face persecution if returned to their country of nationality: Chan at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J).

39    The Authority was correct to conclude at AD [25] that “real risk” within the meaning of s 36(2)(aa) and “real chance” within the meaning of s 36(2)(a) involve the application of equivalent tests: see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [242]–[246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ at [296]–[297] and Flick J at [342] relevantly agreed).

40    For these reasons, the Authority did not misapply the test for complementary protection in s 36(2)(aa). It was entitled to conclude, as it did, that there is not a real risk that the appellant would suffer significant harm as a necessary and foreseeable consequence of being returned from Australia: see AD [26]. As such, ground 4 of the appeal fails.

Disposition

41    For these reasons, the appellant should not be granted leave to advance the new grounds set out in the Notice of Appeal which were not advanced below. Further, ground 4 of the appeal (to the extent it was advanced before the primary judge) fails. As costs should follow the event, the appeal will be dismissed with costs.

42    The following orders will be made:

(1)    the name of the first respondent be changed to Minister for Immigration and Multicultural Affairs;

(2)    the appeal be dismissed; and

(3)    the appellant pay the first respondent’s costs in the amount of $8,323 (being the applicable “short form bill” amount pursuant to r 40.43(3) and Sch 3, item 15.2 of the Federal Court Rules 2011 (Cth)).

Associate:

Dated:    28 August 2024