CCG17 v Minister for Immigration and Border Protection

1. Leave is granted to the appellant to rely on grounds 1, 2 and 9 of the Notice of Appeal.
2. The appeal be dismissed.
3. The appellant to pay the first respondent's costs of the appeal, such costs to be taxed in default of the agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit Court of Australia ("FCC") dismissing his application for judicial review of the decision of the Immigration Assessment Authority ("the Authority") under Part 7AA of the Migration Act 1958 (Cth) ("the Migration Act"), affirming a decision of a delegate of the first respondent not to grant the appellant a protection visa. 2 The appellant is a citizen of Bangladesh. He arrived in Australia as an irregular maritime arrival in October 2012 and applied for a temporary protection visa in August. His visa application was refused by the delegate in February 2016. On advice from the delegate that the decision was reviewable by the Administrative Appeals Tribunal, the appellant applied to the Administrative Appeals Tribunal for review of that decision. Subsequently the Tribunal held that it did not have jurisdiction to hear the review because the appellant was a fast-track applicant and his review rights were under Part 7AA of the Migration Act. In January 2017 the Department referred the delegate's decision to the Authority for review. 3 The Authority concluded that the appellant did not meet the requirements of the refugee protection criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Migration Act. In reaching that conclusion, the Authority: (a) did not accept the appellant's claim that he was an adopted child of an illegitimate birth, finding that his evidence was inconsistent and contradictory, and accordingly rejected the appellant's claim that as an adopted child of an illegitimate birth he would face a real chance of harm if returned to Bangladesh; (b) accepted the appellant's claim that he is a supporter of the Bangladesh National Party ("BNP") and would vote for the BNP on return to Bangladesh. However the Authority did not accept the appellant's claim that he was a BNP activist and assessed him as "very low profile BNP supporter though not a BNP member, activist or worker" and was not satisfied that he would face a real chance of harm if returned to Bangladesh because he is a BNP supporter; (c) accepted that the appellant had been taken to hospital in October 2006 for an injury to his eye, but did not accept that the injury was a consequence of being attacked at an BNP meeting, finding aspects of the appellant's evidence about that event implausible. 4 Two grounds were advanced on the judicial review application. Ground 1 was that the Authority failed to identify and act in accordance with the requirements of s 473CB of the Migration Act in making a decision on the appellant's application. This ground was supported by six particulars as follows: Particulars: i. The IAA failed to determine well-founded fear of the applicant for which the applicant fled his country by boat risking his life in the ocean to avoid his humiliation and harm faced and is likely to face in his reasonably foreseeable future if is returned back to his country. ii. The IAA relied on any or all of the information in assessing and making decision of the applicant's application rather than focusing as to why the applicant applied for his TPV visa. The IAA ignored the fact that if there was no significant risk that the applicant had in his country, he wouldn't travel to Australia by boat risking his life in the ocean. iii. The IAA made its decision in a conventional way without realizing and satisfying the provisions of the Migration Act 1958. iv. The Minister (DIBP) clearly notified in writing at page No. 4 of its decision record on 10 February 2015 in title 'Review Rights' that the applicant is entitled to do his merits review of his TPV refusal decision and also in the Departmental Website on 'illegal Maritime Arrival' that the applicant would be advised if they are under the fast track assessment process and also the Website reveals that if the applicants are not eligible for the AAT review then the Department will automatically refer the case to the IAA and the Departmental letter to the applicant outlined clearly how to access his review rights from the AAT within 28 days of the decision. Whereas the Minister (DIBP) directly referred the applicant's case to IAA and the IAA reviewed the decision without considering any of those issues and therefore the Minister and the IAA decisions contained huge procedural unfairness in deciding the applicant's application. The delegate and the IAA contemplated to matters which were not related to the refugee's convention or even beyond the Migration Act definition of refugees. The delegate and the IAA were concerned with issues not relevant to the applicant's claim made in his visa application. v. The IAA made its findings without any evidence or verification or hearing with the applicant before rejecting the applicant's claims in a conventional way which constitutes a non-compliance of the provisions of the Migration Act 1958. vi. The provisions of the Migration Act required the IAA to ensure, as far as was reasonable practicable that the applicant understood as to why the information and questions were relevant to the review applicant for the purpose of s91R (3) and s36 (2) (a a), and the consequences of being relied on in affirming the decision that is under review and the IAA has failed to do so and therefore committed a jurisdictional error. (errors in the original) 5 Ground 2 was that the Authority failed to comply with the requirements of the Migration Act in making a decision on the appellant's application. Particulars to that ground were given as: The [Authority] made its findings without any sound basis or evidence in rejecting the review applicant's claims of his visa application as not credible and as such an act of the [Authority] constitutes breach of the requirement of the Migration Act 1958. 6 The primary judge rejected both grounds holding that no jurisdictional error was identified by either ground but rather the appellant, by his grounds, was inviting the Court to engage in impermissible merits review. The primary judge also rejected the claim that the Authority had not complied with its statutory obligations in respect of the conduct of the review. 7 The appellant has raised 11 grounds in his notice of appeal from the decision of the FCC as follows: 1. Hon. Judge Street of the Federal Circuit Court failed to hold that Immigration Assessment Authority committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act. 2. Immigration Assessment Authority failed to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection. The IAA unreasonably discredited all oral and written evidence of the appeallant in support of his claims of fear of persecution. 3. The appellant has a legitimate expectation that the IAA will follow the same process and procedure of Administrative Appeal Tribunal. In the name of Fast Track mechanism it crossed all boundaries of procedural fairness and [made] unreasonable decision. 4. The Delegate first found it as reviewable and gave right to review to the Appellant. The applicant applied for review to the AAT. AAT found that it has no jurisdiction. 5. Respondent misguided the applicant and gave wrong direction. The appellant believes that he was denied natural justice and procedural fairness when the Delegate, the AAT and the IAA all three were biased in accepting evidence and assessing the appellant's claim for the complementary protection. 6. Hon Judge Street had [already] denied natural justice and procedural fairness to more that hundreds of Refugee Applicants when their applications were dismissed at the Court's first hearing (call Over). The appellant believes that Hon Judge failed to provide natural justice to the Appellant when he was very limited time to prepare submission and appearance. He was cllaed for hearing three [months] earlier to appear [before] the Court without any representation. 7. The Hon. Judge failed to hold that the IAA exceeded its jurisdiction or constructively failed to exercise its jurisdiction. 8. The Hon STREET failed to hold that the IAA made inconsistent assertions on the credibility testimony. 9. The appellant was denied natural justice and procedural fairness when the hearing at first interview was not conducted by the Department through a standard Bengladeshi Language Interpreter. The IAA did not account the appellant's right to have a standard interpreter. The IAA made a jurisdictional error when it fully relied on the Departmental records of hearing and did not believe it is relevant. The IAA did not give importance of Communication barriers and made decision with closed mind. The IAA did not give opportunity to the Appellant to send or express details about miscommunication because he was not called for hearing before IAA. 10. The absent of calling for hearing at IAA is itself [an] error in the judicial Review process. 11. A judicial procedural requirement for fair trial or hearing was discarded which is essence of the common law. (errors in original) 8 Grounds 1 and 2 are new grounds that were not raised below either in terms or substance and require the leave of the Court to raise them. The Minister formally objected to leave being granted on the basis that the grounds have no merit but as the appellant was self-represented below and there would be no prejudice to the Minster in dealing with these grounds, I consider that the interests of justice, in the circumstance, favour the grant of leave. 9 On ground 1, no error of law is disclosed in the conclusion of the Authority that the appellant did not meet the requirements for complementary protection. The appellant's complementary protection claim did not rely upon independent factual matters unrelated to the factual matters which the appellant advanced in support of his refugee protection claim. The Authority clearly appreciated the different test applicable to its assessment of any complementary protection obligations that might be owed to the appellant but given its findings on the protection claim under s 36(2)(a) of the Migration Act, the Tribunal's conclusions in respect of the claimed complementary protection obligations were open to it: SZSGA v Minister for Immigration and Border Protection [2013] FCA 774 at [56]; DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 ("DBE v MIBP") at [54]. No jurisdictional error is disclosed in the reasoning. 10 It follows that ground 2 also fails. 11 Grounds 3 and 4 can be dealt with together. These grounds are misconceived as the appellant, as a fast-track applicant, was never entitled to have the decision made by the delegate reviewed by the Administrative Appeals Tribunal. The provisions of Part 7AA of the Migration Act governed the process with respect to the review of the delegate's decision and the doctrine of legitimate expectation has no role to play in this regard. Critically, notwithstanding the delegate's error in informing the appellant that his decision was reviewable by the Tribunal, the appellant was not denied the statutory right to have the delegate's decision reviewed. To the contrary, upon the Tribunal holding that it did not have jurisdiction in respect of the review, the Department referred the delegate's decision to the Authority for review as required by s 437CA of the Migration Act. 12 Ground 5 is also a new ground which was not raised below either in terms or in substance. Leave to rely on this ground is not granted because the ground does not identify the basis for asserting bias in a form that is comprehensible and it is not apparent from the material or the appellant's oral submissions as to how this ground supports the claim of jurisdictional error. For the sake of completeness, the fact that the Authority affirmed the delegate's decision does not mean that the Authority did not approach its task with an open mind. 13 Ground 6 alleges a denial of procedural fairness in relation to the hearing by the Federal Circuit Court. The appellant was asked to explain to the Court the basis upon which he was alleging a denial of natural justice. It appeared from the appellant's response that it related to the transfer of the appellant's application from Dowdy J to Street J. There are two possible bases upon which this ground is capable of being understood, one as a claim of denial of procedural fairness in relation to the conduct of the hearing by Street J and, secondly, as a claim of denial of procedural fairness based upon the identity of Street J as the judge hearing the judicial review application. Neither basis discloses a denial of procedural fairness. The appellant's judicial review application was dismissed at a final hearing, at which the appellant appeared and was given full opportunity to present his arguments. Furthermore, the circumstances of the hearing of the appellant's case are wholly distinguishable from the circumstances that concerned the courts in SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88 and Shrestha v Migration Review Tribunal [2015] FCAFC 87. 14 Grounds 7 and 8 are also new grounds. They are similarly not proper grounds of appeal and it is not apparent from the material or the appellant's oral submissions as to how this ground is relied upon by the appellant to support a claim of jurisdictional error. Accordingly, leave to rely on those grounds is also refused. 15 Ground 9 is another new ground. This ground appears to be directed at the quality of the interpretation at the first interview that was conducted before the Department. I will give the appellant leave to raise this ground as the standard of interpretation at the delegate interview was a matter taken into account by the Authority in its consideration at paragraphs 22 and 23 of the Authority's reasons. The Authority concluded that it was satisfied that there were no problems with interpretation as the asserted appellant and, as there is no material before the Court indicating otherwise, this ground also fails. 16 Grounds 10 and 11 not proper grounds of appeal but, in any event, both grounds misconceive the statutory process. Part 7AA which governs the processes to be applied by the Authority in conducting a review do not require the Authority to invite an appellant to appear before it: DBE v MIBP at [61]. Furthermore, the common law natural justice hearing rule is excluded by s 473DA(1) of the Migration Act in relation to reviews conducted by the Authority: CSR16 v Minister for Immigration and Border Protection [2018] FCA 3474 at [24]-[27]. There was no evident failure on the part of the Authority with respect to its review process. 17 Accordingly, as none of the grounds of appeal have any merit, the appeal must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.