AXB17 v Minister for Immigration and Border Protection

LOGAN J: 1 The appellant is a citizen of the People's Republic of Bangladesh. He arrived in Australia by boat in 2013. The circumstances of his arrival were such that he is what the Migration Act 1958 (Cth) (the Act) terms an "unauthorised maritime arrival". In June 2016, he came permissibly to make, under the Act, an application for that class of visa known as a protection visa, Safe Haven Enterprise (Subclass XE 790) visa. That application was refused by a delegate of the then Minister for Immigration and Border Protection on 19 December 2016. The successor in the administration of the Act to that Minister is the first respondent, the Minister for Home Affairs (Minister). 2 That refusal decision was required to be, and was, referred to the Immigration Assessment Authority (Authority) for review. On 16 February 2017, for reasons given that day, the Authority affirmed the Minister's delegate's decision not to grant to the appellant the visa for which he had applied. 3 The appellant then sought the judicial review of that decision of the Authority by the Federal Circuit Court. 4 On 2 March 2018, that court dismissed with costs the appellant's judicial review application. The appellant has now appealed to this Court against that order of dismissal. As might be expected, the Authority has filed a submitting appearance. The Minister is the only active party respondent. 5 The grounds of appeal are these: 1. The judge of the Federal Circuit Court in his honourable judgement delivered on the 02 March 2018 failed error of law and relief under the judiciary Act. He failed to find that the Immigration Assessment Authority IAA has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt. 2. Honourable Judge failed to hold that the IAA made an error of law when it did not take up and separately deal with the factual issues. The IAA failed to find low profile political activists are mostly persecuted because of their role for the party like Jamaat-e-Islami. The IAA failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The IAA concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible. 3. I was denied procedural fairness when the IAA member made opinion based on assumption and possibilities without any proper investigation. The IAA failed to assess the current situation in Bangladesh where thousands of Jamaat-e-Islami (JAMAATE-E-ISLAMI) workers are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government & the Authority. In assessing danger to me, the IAA undermined the danger I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life. 4. Besides, the Immigration Assessment Authority did not follow the proper procedure as required by the Act in arriving its decision dated 16 February 2017 in deciding my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed. 6 The appellant filed no written submission. Before calling upon him to make oral submissions today, I ensured that the written submission filed in advance on behalf of the Minister was translated for him. When called upon to make oral submissions in respect of his appeal grounds, the appellant voiced disagreement with para 19(e) of the Minister's written submission. That paragraph seeks to summarise the reasons why the Authority was not satisfied as to the appellant's membership of the Bangladesh Islami Chhatra Shibir (ICS). 7 The essence of the appellant's claim for a visa was membership of ICS, assaults upon him by members of the Awami League and the laying of false charges against him by the police. The basis of his visa claim is accurately and more particularly described in para 5 of the Authority's reasons. Paragraph 19(e) of the Minister's written submissions sought to summarise one basis of why the Authority member was not satisfied in relation to the claim which I have described. It draws in an accurate way upon para 14 of the Authority's reasons and is in these terms: 19. (e) Country Information indicated that to be a party member, a person had to: (i) attend meetings; (ii) keep personal records of one's own religious activities; (iii) preach Islam; (iv) make donations; (v) pass an oral test on a list of 50 booklets on the required reading focussing on Koran studies, Hadith and the political economy; (vi) take an oath of allegiance; (vii) actively participate in the ICS; and (viii) read a further 75 books. The Appellant's own evidence did not suggest that he had met such requirements ([14]). 8 The disagreement voiced by the appellant in his oral submission with that summary was a disagreement in relation to the factual finding made by the Authority, based on country information, to which the Authority member referred. That supported such findings. The Authority was not bound to accept uncritically the claim made by the appellant for the visa, or supporting evidence put forward by the appellant to the Minister's delegate. The Authority's reasons disclose that the appellant sought to introduce a further statement from him. The statement was proffered after the delegate had made the refusal decision. The Authority was satisfied. The Authority formed the view that, insofar as the statement contained the appellant's opinion as to the current political situation in Bangladesh, it did contain new information, but was not satisfied that there were exceptional reasons for considering this new information. Neither before the Federal Circuit Court, nor as a ground of appeal, was there any issue as to whether the Authority's reasons exhibited any error of law in relation to the construction and application of s 473DD of the Act. 9 Although there was no express allegation of a contravention of s 473DD in the grounds of review, the Minister chose for reasons of a perceived moral litigant obligation, to make a particular submission on that subject to the learned primary judge. That submission is detailed in paras 28 and 29 of his Honour's reasons for judgment and, at para 30, his Honour accepts those submissions as correct. It is not necessary for the purposes of the appeal to do other than note this because the grounds do not take up any alleged noncompliance with s 473DD of the Act and this was not a subject developed in oral submissions by the appellant. 10 As to the grounds of appeal, it is a moot point, and the Minister's written submission highlights this, as to whether each of them raises an issue which was at large before the Federal Circuit Court. In the circumstances of the present case, the Minister chose, in oral submissions, just to meet the grounds of appeal on their merits, without pressing whether one or the other of them would require a grant of leave. Given the appellant's quite obvious and understandable lack of appreciation of differences between issues of law and fact, and the nature of an appeal, the Minister is hardly to be criticised for that approach. 11 It is necessary, now, to turn to the grounds of appeal pleaded. 12 As to Ground 1, it has been read by the Minister as raising an issue as to whether there was an error on the part of the learned primary judge in holding that the Authority was not under any duty to make enquiries. Of that proposition, the learned primary judge observed, at para 23, as follows: 23. Ground 5 cannot succeed because the second respondent's reasons who that it gave detailed consideration to each of the documents relied upon by the applicant. It noted that in some respects the documents contradicted the applicant's claims/other evidence and after conducting such an examination the second respondent formed the view that it was not satisfied that the applicant had been charged by the police. The second respondent did not make a formal finding on the authenticity of the documents, but it did not need to do so. Nor was the second respondent required to make inquiries to verify the authenticity of the documents. Whilst a "failure to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained" might mean that a decision made under the Migration Act has constructively failed to exercise jurisdiction, an inquiry to ascertain the authenticity of a document is not an "obvious" one: APP15 v Minister for Immigration and Border Protection [2016] HCATrans 221 (Kiefel ACJ); Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. 13 It is not necessary, for the purposes of determining this appeal, to decide whether the provisions of Pt 7AA of the Act are such that what was said in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALR 1123, in relation to the duty, if any, of a tribunal conducting a review under the Act to make an enquiry is distinguishable. It is enough to assume that what was said in that case as to when a duty may arise is applicable to the Authority. 14 This case is not one where there was an obvious enquiry readily made. Investigation of whether there was a foundation for the claim of ICS membership by the appellant would have entailed the making of detailed investigations in Bangladesh of quite uncertain nature and extent. There was no error, therefore, in the conclusion reached by the primary judge as to the absence in the circumstances of any duty on the part of the Authority to conduct an enquiry so as to ensure there was a review in accordance with the Act. 15 As to Ground 2, this, in my view, is nothing more than an attempt impermissibly to challenge on appeal the merits of factual findings made by the Authority. It was obvious from his oral submissions that the appellant disagrees, and I accept generally disagrees, with those findings, but findings which are logically expressed and reasonably open, and these were, may not be challenged permissibly on judicial review, much less on appeal. 16 Ground 3 alleges a failure on the part of the authority to assess the current situation in Bangladesh for Jemaah Islamiyah (JI) workers. ICS is a particular student membership group which can lead to joining JI, according to the findings made by the Authority (see para 13 of the Authority's reasons). The Authority was not satisfied, for reasons given in writing, that the appellant was a JI worker. In those circumstances, it was unnecessary for the Authority to address the current situation in Bangladesh for JI workers. 17 Ground 4 is nothing more than a general allegation of a failure on the part of the Authority to follow proper procedures. Unparticularised as it is in the notice of appeal, it is a meaningless ground of appeal. No particularity was given to it by the appellant in his oral submissions. 18 For completeness, I add that it is possible perhaps to read Ground 1 as containing an allegation that the learned primary judge ought to have found that the conclusions reached by the Authority were not reasonably open or were irrational. His Honour found that they were open and not irrational. Suffice it to say, I agree respectfully with his Honour's conclusions. 19 It necessarily follows from the foregoing that the appeal must be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.