Federal Court of Australia

FAH19 v Minister for Immigration and Multicultural Affairs [2024] FCA 1066

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 to be agreed or, failing agreement, to be taxed.

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 FAH19 v Minister for Immigration & Anor [2020] FCCA 2555 (judgment or J).

2    The appellant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 24 March 2013. He applied for a Safe Haven Enterprise (Class XE) (subclass 790) visa (SHEV) on 13 May 2016. The appellant’s claims for protection are based on a fear of harm if returned to Bangladesh from supporters of the Awami League due to his involvement with the Jamaat-e-Islami.

3    On 9 October 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 second respondent, the Immigration Assessment Authority (the Authority) on 14 October 2019, pursuant to s 473CA of the Migration Act for review under Pt 7AA of the Migration Act.

5    By his legal representative, the appellant provided written submissions to the Authority. Relevantly, three documents were annexed to these submissions: a doctor’s letter regarding the claimed hospitalisation of the appellant following an incident with an opposing political party; a receipt for the payment of 500 taka to the Bangladesh Jatiyotabadi Karmojibi Dal (BJKD); and a letter of support from the BJKD confirming the appellant is a member of the BJKD Central Committee and worked with the author.

6    In its decision, the Authority identified the following sources of new information given to it by the appellant, being:

(1)    Appendix A to the Submission dated 4 November 2019 (Submission) – letter from Hospital (Hospital Letter);

(2)    Appendices B and C to the Submission – receipt and letter of support (Receipt and Letter); and

(3)    country information referred to in the appellant’s submission, namely a January 2018 report by Odhikar, a Bangladeshi human rights group;

(together, the new information).

7    In his written submissions provided to the Authority, the appellant also raised allegations that his failure to provide the new information earlier was affected by fraud perpetrated by his former migration agent, the conduct of the SHEV interview and the applicant’s estrangement from his father in Bangladesh.

8    On 26 November 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).

9    The appellant sought judicial review of the Authority’s decision. The primary judge dismissed the appellant’s judicial review application with costs on 10 September 2020. That decision is the subject of the present appeal.

10    For the reasons that follow, the appeal will be dismissed with costs.

The appellant’s material

11    The appellant filed a Notice of Appeal on 6 October 2020 which sets out one particularised ground of appeal and seeks orders that (inter alia) the judgment be set aside.

12    On this appeal, 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 before me, 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.

Consideration

13    By his sole ground of appeal, the appellant contends:

The IAA has failed to apply the correct test.

Particulars:

The IAA breached section 473DD of the Migration Act 1958 (Cth) in dealing with submissions advanced by the Applicant in determining whether “exceptional circumstances” exist by effectively failing to take into account the matters referred to in section 473DD(b)(ii) of the Act.

14    The ground of appeal reproduces, in identical terms, the ground of judicial review advanced below. By reference to that ground, the primary judge held that there was no basis to find that the Authority failed to take into account s 473DD(b)(ii) of the Migration Act and that the Authority’s reasons in relation to the new information reflect a genuine consideration of each limb of the subsection: J [31] and [35]. The question, therefore, is whether the primary judge erred in making such findings regarding the Authority’s decision.

15    Section 473DD of the Migration Act establishes the “exceptional circumstances” in which the Authority is entitled to consider “new information” when making a decision under the Act. It provides:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

16    The manner in which this provision should be applied was described in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 at [11]–[12] (Kiefel CJ, Gageler, Keane and Gordon JJ). That is, the Authority must first assess new information against the criteria specified in both ss 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a). If neither of the criteria specified in s 473DD(b) is met, the Authority is prohibited from taking the new information into account. On the other hand, if either or both criteria in s 473DD(b) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a).

17    As the appellant does not complain that the Authority failed to take into account the matters in s 473DD(b)(i), the focus of these reasons will be upon the Authority’s consideration of the matters in s 473DD(b)(ii), which is the subject of the ground of appeal. However, for the following reasons, I consider that the appellant’s ground of appeal is without merit.

Hospital Letter

18    It is plain that the Authority considered whether the Hospital Letter was credible personal information pursuant to s 473DD(b)(ii) at AD [22]. The Authority noted its concerns about the genuineness of the document and the veracity of its content, including that it:

(1)    describes matters going “well beyond” historical records held by a hospital of clinical observations made by hospital staff concerning a patient’s medical state; and

(2)    was “significantly inconsistent” with evidence given by the appellant in his SHEV interview about the dates on which the incident resulting in hospitalisation occurred and, most significantly, evidence about the period of time in which he was detained in India. The Authority noted that, by the appellant’s own evidence, he could not have been admitted to hospital in Bangladesh on the date claimed in the Hospital Letter because the appellant had consistently stated that he was detained in India at this time.

19    It is permissible for the Authority to rely upon inconsistencies between the content of the new information and the review material already before it for the purpose of determining whether there are exceptional circumstances and, in particular, whether the new information is credible within the meaning of s 473DD(b)(ii): AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [65] (Banks-Smith and Jackson JJ).

20    For these reasons, the Authority did take into account the matters referred to in s 473DD(b)(ii) and therefore correctly applied the test in s 473DD of the Migration Act with respect to whether the Hospital Letter was new information which the Authority was permitted to consider.

Receipt and Letter

21    The Authority also had regard to whether the Receipt and Letter are credible personal information. It raised “serious concerns” about the veracity of the letter’s contents on the basis that it is inconsistent with the appellant’s own evidence that he had not been involved with any political groups other than the Jamaat-e-Islami: AD [26]. The Authority concluded that the claim in the letter that the appellant was attacked by Awami League supporters is directly contradicted by the appellant’s own evidence and, in light of this matter (inter alia), the Authority was not satisfied that either of the Receipt and Letter is credible personal information: AD [26]–‍[27]. These findings demonstrate that the Authority did take into account the matters referred to in s 473DD(b)(ii) and therefore correctly applied the test in s 473DD of the Migration Act with respect to whether the Receipt and Letter amounted to new information which the Authority was permitted to consider.

Country information

22    The Authority expressly considered the criterion in s 473DD(b)(ii) because it stated that it was not satisfied that the country information was credible personal information on the basis that (inter alia) the appellant’s representative did not provide a detailed citation or provide a copy or extract from the relevant report: AD [28]. The contention that the Authority failed to apply correctly the test in s 473DD by failing to take into account the matters referred to in s 473DD(b)(ii) with respect to the country information is therefore without substance.

Explanation for delay

23    The Authority had regard to the appellant’s submission that the requirements of s 473DD were satisfied because his ability to provide the new information to the delegate was affected by fraud perpetrated by his former migration agent, the conduct of the SHEV interview and the appellant’s estrangement from his father: AD [5]. The Authority considered but was not satisfied of the merit of each of these contentions: AD [6]–[10], [20].

Disposition

24    For these reasons, the Authority correctly applied the test in s 473DD of the Migration Act because it considered the criteria in both ss 473DD(b)(i) and (ii) with respect to each of the new information sources prior to reaching its conclusion that there were not exceptional circumstances to justify considering the new information. It also had regard to the appellant’s submission relating to his ability to provide the new information to the delegate. It follows that the primary judge did not err in concluding that the Authority’s findings were open to it for the reasons given and that they were made lawfully in compliance with the requirements of s 473DD of the Migration Act.

25    As costs should follow the event and as there was no opposition to the change of name of the first respondent, 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 to be agreed or, failing agreement, to be taxed.

Associate:

Dated:    16 September 2024