Federal Court of Australia

FPM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 550

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    In this appeal, the appellant contends that a judge of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) (primary judge) erred in failing to find that the Immigration Assessment Authority fell into jurisdictional error by misconstruing s 473DD of the Migration Act 1958 (Cth) (a section that has subsequently been repealed by the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) Sch 2, s 228).

2    The appellant is a citizen of Bangladesh who arrived in Australia by boat as an Irregular Maritime Arrival on 11 April 2013. He subsequently applied for a Safe Haven Enterprise Visa (SHEV) on 18 August 2016. On 3 May 2017, a delegate of the present respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, made a decision refusing the application.

3    On 15 May 2017, the application was then referred to the Authority for review of the delegate’s decision. On 2 June 2017, the Authority received a 14-page written submission from the appellant accompanied by a number of documents.

4    The Authority subsequently determined that the submission and attached documents contained “new information” within s 473DD of the Migration Act. It decided that the additional documents supplied by the appellant should not be received pursuant to s 473DD and that the visa should be refused.

5    The appellant then sought judicial review of the decision of the Authority. On 10 August 2022, the primary judge dismissed the application; FPM17 v Minister of Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 626. The appellant subsequently filed a notice of appeal in this court on 30 August 2022

6    In his written submissions the appellant sought leave to amend the notice of appeal. The Minister did not oppose the grant of leave and accordingly the appeal was advanced on the basis for the following two grounds:

(1)    The primary judge failed to apply a binding authority, namely CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (Bromberg J); and

(2)    The primary judge failed to find that the incorrect test had been applied by the Authority. The appellant alleges that the Authority misdirected itself when assessing that the appellant’s claim that “banned terrorist groups like the Purba Bangla Communist Party” who “could be operating in Jessore and could target [the appellant] for extortion” was “new information” rather than dealing with it as a squarely raised claim, whereby the appellant feared harm flowing from generalised terrorist organisations seeking to extort the appellant’s family-held wealth and property holdings.

7    The appellant was represented at the hearing by Mr P W Bodisco, of counsel. The Minister was represented by Mills Oakley, solicitors. Both filed written submissions in advance of the hearing.

2.    BACKGROUND

8    The decision of the Authority summarised the claims advanced by the appellant before the delegate. He claimed that he had been targeted for extortion and threatened with death in the Jashore (previously known as and referred to in the Authority’s reasons as Jessore) District of Bangladesh by men associated with the Awami League, that were acting with the complicity of local police. The appellant claimed he had been targeted in this way because he did not support the Awami League, being someone that identified as “politically non-aligned”. He also claimed that he was targeted because he was from a wealthy family who, like him, were not politically aligned and did not support the Awami League. The Authority noted that the delegate had rejected his claims of being targeted for extortion and of fearing harm.

9    The Authority then addressed the information before it, noting that on 2 June 2017 the appellant’s representative provided a submission to it that included a number of documents and photographs as well as reports that it characterised as “country information”. Whilst ground (1) of the appeal concerns the Authority’s decision to reject all of this information on the basis that the requirements of s 473DD were not satisfied, the parties agree on appeal that ground (1) may be addressed by reference to the manner in which the Authority addressed new information in the form of what it described as a new claim.

10    In this regard, at [4] of its reasons the Authority noted the submission that banned terrorist groups like the Purba Bangla Communist Party (PBCP) could be operating in Jashore and could target the appellant for extortion. This, it found, had never before been claimed. After finding that the appellant is well educated and that, following the SHEV interview he would have been aware that the delegate had doubts about the credibility of his claims and the merit of his case it went on to say at [7]:

7.    Further, the delegate provided the applicant with ample opportunity to submit any claims that he wished to make but the applicant never said anything about fearing terrorist groups like the PBCP and he has not satisfied me that he could not have provided this claim to the delegate before she made her decision. The applicant has never previously claimed to fear the PBCP or terrorists and I am not persuaded that the applicant has recently formed a fear of this kind on the basis of the vague reports of recent terrorist activity in Jessore which have been provided to the IAA (which include a 4 May 2017 report of a man wanted on a murder charge being killed by terrorists, a 5 May 2017 report which refers to terrorist plans to kill the Awami League and that man has been stabbed, and a 29 May 2017 report of the arrest in Jessore by police of man on terrorist charges). The applicant has not satisfied me that his claim to have a fear of this kind is credible personal information. The applicant has therefore not satisfied me that s.473DD(b) is met with regard his claim to fear terrorist groups like the PBCP. Further, given that I am not satisfied that this new information is credible, and given that there would not appear to be any exceptional circumstances of any other kind associated with this information, I am not satisfied that there are exceptional circumstances to justify considering this new information.

11    The Authority then proceeded in [8] to [13] to address the other items of new information by reference to s 473DD of the Migration Act.

12    The Authority then turned to the appellant’s claims to protection, summarising them as follows in [18]:

18.    As has been summarised above, the applicant claims to have departed Bangladesh after he was stopped while on his way to work and threatened with death by two men (who the applicant believes are associated with the Awami Leage), if he did not pay BDT300,000 (AUD 4,800) in seven days. He attempted to report the matter to the police but the police did not take his report and he believes that the police informed the extortionists because a couple of days later he was threatened again by the same men who asked why he had gone to the police. He claims that he was targeted in this way because his family was known to be financially well off and because neither he nor his family supported a political party and because the Awami League considers anyone who is not supporting them to be their enemy. In 2015 his father went to the bank to withdraw money. Some people approached his father and stole from him his bank documents along with BDT40,000 (AUD640). His father went to the police to make a complaint but the police did not investigate the theft of the money, and only registered a report of lost documents. The applicant has provided a scanned copy of the police report and its translation. The entry records that on 28 May 2015 the applicant’s father reported that while going from his home to the AG’s office he lost his handbag containing his national identity certificate, a cheque book for the Sonali Bank, and a cheque book for the Islami Bank, and that he searched for this property but could not find it.

3.    THE APPEAL

3.1    Ground (1) – error in the application of s 473DD

13    In ground (1) the appellant contends that the Authority misapplied s 473DD(b)(ii) of the Migration Act by failing to apply the correct construction of the words “credible personal information” as they appear in that sub-section.

14    Section 473DD provides for the circumstances in which the Authority is to consider new information:

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 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.

15    Both parties rely on the reasoning of Bromberg J in CSR16. In that case, his Honour considered two alternative ways in which the word “credible” can be understood. The first concerns whether information is “credible” in the sense that it is able to be believed (at [39]). The second is whether the new information is capable of being accepted by the Authority as truthful. In adopting the second, his Honour said:

41.    In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

42.    The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

16    The question posed by the appellant in ground (1) is whether the Authority erred by assessing the credibility of the evidence as to whether it could be believed, rather than considering whether it is information capable of being accepted by the Authority as truthful.

17    The central reasoning of the Authority in relation to this point is at [7] where it says:

… The applicant has never previously claimed to fear the PBCP or terrorists and I am not persuaded that the applicant has recently formed a fear of this kind on the basis of the vague reports of recent terrorist activity in Jessore which have been provided to the IAA (which include a 4 May 2017 report of a man wanted on a murder charge being killed by terrorists, a 5 May 2017 report which refers to terrorist plans to kill the Awami League and that man has been stabbed, and a 29 May 2017 report of the arrest in Jessore by police of man on terrorist charges). The applicant has not satisfied me that his claim to have a fear of this kind is credible personal information.

18    The primary judge found:

34.    The argument that the Authority adopted an erroneous construction [of] s.473DD in that [it] misconstrued s.473D(b)(ii) is rejected. The Court understands that this was the argument that the Authority made an error of the kind identified in CSR16, that is, that the Authority failed to assess the information as being capable of being believed.

35.    The Authority’s reasons explain that the applicant had never previously claimed to fear the PBCP or terrorists and the Authority was not persuaded that the applicant had recently formed a fear of this kind on the basis of the vague reports. In other words, the Authority had formed the view that the information was not open to be or capable of being accepted by the Authority as truthful for the reasons it explained.

(Emphasis added)

19    The analysis offered at [7] indicates that the Authority did not consider that it needed to make any finding whether or not the claims were true, but rather it was evaluating whether it was information capable of being accepted as truthful. As the Authority notes at [9] the “country information … was either published before the date of the delegate’s decision or has been provided with no details as to when the information was published”. In this regard I note that the references in parentheses are dated some four years after the events that the appellant claims led to him to leave Bangladesh in circumstances where they were not made before the delegate.

20    In my respectful view, the primary judge clearly adopted the correct test from CSR16. I agree with the conclusion of the primary judge. I am not persuaded that the Authority incorrectly approached the question as one of credibility rather than one of whether a credible claim was open or capable of being accepted. In reaching its conclusion that it was not capable of being accepted the Authority was entitled to have regard to the character of the information that the appellant put forward in assessing whether the information is capable of being believed; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150 at [75] (Mortimer and Jackson JJ).

21    Accordingly, ground (1) must be dismissed.

3.2    Ground (2) – failure to address an articulated claim

22    In ground (2) the appellant contends that the Authority failed to deal with his claim to fear harm flowing from terrorist organisations seeking to extort the appellant’s family held wealth and property holdings. He submits that in his earliest statements to the authorities the appellant made general claims to fear the activities of terrorists and that the Authority failed to address these.

23    The basis for the contention that he advanced a clearly articulated claim centres on two points. First, on the case assessment provided in his Biodata interview conducted in April 2013 upon his arrival where an officer of the Department wrote, in answer to the question “Why did you leave your country of nationality (country of residence)?”:

I went to work and suddenly some people came to demand money as a test, couldn’t provide, advised me they would kill me if I didn’t pay…

24    Secondly, on the following provided in his arrival interview in April 2013 as follows:

Tell me why you left Bangladesh.

I was working at the tailoring [sic] so they asked me for extortion, blackmail and so I was unable to give that money, they tried to pressure me, so my parents told me to leave from Bangladesh, so I decided to leave then.

Who was blackmailing you for money?

This is the village terrorism.

How were you blackmailed?

I didn’t pay.

Yes, but how were you blackmailed?

So I wasn’t involved with the political party, there is the political party doing the terrorism, and anyone who is not involving with their party they charge the blackmail.

What is the name of this political party?

Awamilic [sic].

What date were you blackmailed?

I don’t know the date, before the date I come here, because I come here one week before.

Other then [sic] blackmail did anything else happen?

No.

Is this the primary reason for why you left Bangladesh?

Yes.

How much money did they ask for?

300,000 taka.

Is that a lot of money?

Yes.

(Emphasis added)

25    It is this passage that is emphasised by the appellant as referring to “terrorism” in general and not to the more particular claim, identified by the Authority at [18], that the men who sought to extort money from the appellant were associated with the Awami League, who did so because he and his family were perceived to be wealthy and that the motivation for the extortion was because neither he nor his family supported the Awami League.

26    The difficulty with the appellant’s submission is that it is not supported by a fair reading of the materials. In his arrival interview, the appellant directly links what he refers to as “village terrorism” to the Awāmī Līg political party (being the Awami League). That link is sustained throughout the lengthy and clear statutory declaration provided by the appellant in support of his claims where he says that he fears that if he is forced to return to Bangladesh he will be “harmed by supporters of the ruling party, the Awami League, and as a result I will receive no protection from the state authorities who are controlled by the government nor will I be able to avoid this harm by moving somewhere else in Bangladesh”.

27    The primary judge rejected a similar argument in her reasons (at [31) on the basis that the appellant’s references to “village terrorism” could not be separated from his references to being blackmailed because of his lack of involvement with the Awami League.

28    I respectfully agree with that conclusion.

29    Accordingly, ground (2) of the appeal must be dismissed.

4.    DISPOSITION

30    The appeal must be dismissed with costs.

Associate:

Dated:    27 May 2025