CCW16 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 This is an appeal against an order of the Federal Circuit Court of Australia made on 1 February 2017, dismissing the applicant's application for judicial review in respect of a decision of the Immigration Assessment Authority made on 27 June 2016, in which the Authority decided to affirm the decision not to grant the applicant a protection visa under the provisions of the Migration Act 1958 (Cth). The decision of the Authority was made pursuant to relatively recently enacted provisions of the Migration Act. As explained in the first respondent's submissions, the applicant's claims were dealt with pursuant to the "fast track assessment process" introduced by the provisions of Pt 7AA of the Migration Act, commencing on 18 April 2015. 2 As the first respondent's submissions disclosed, the purpose of the fast-track assessment provisions as set out in s 473BA is to provide a limited form of review of certain decisions. For that purpose, the Authority is established as the body conducting such reviews. The Authority is obliged to review what is referred to as a "fast track reviewable decision", the objective being for the Authority to reach the correct or preferable decision. It is not necessary in this matter to explain in any greater detail the statutory provisions relating to the fast-track assessment process. 3 The applicant was represented in the proceeding before the Federal Circuit Court by pro bono counsel and solicitors. More grounds of review were raised in that proceeding than on the appeal. The Federal Circuit Court, in its reasons for judgment, gave careful consideration to those claims, but decided that no jurisdictional error was established. It was for this reason that the Federal Circuit Court dismissed the applicant's application. The single ground of appeal which is now raised is as follows: At para 79 the Judge disallows Part 2 of the first ground of Appeal on the grounds there is no evidence of people being prosecuted for illegal departure as per the Emigration Ordinance. The decision makers have relied totally on DFAT information gathered from data of arrival records of returned asylum seekers and others who have departed Bangladesh illegally. This does not take into account the real chance of those returnees being detained and imprisoned at a subsequent date, thus resulting in loss of freedom and loss of livelihood. The applicant is aware anecdotally of this happening to men deported recently to Bangladesh by Australia thus leading to a real fear that this will happen to him. The applicant's fear of the possibility or threat of a penalty being imposed against him upon return for his illegal departure from Bangladesh was implicitly claimed in his fear of harm generally for that reason. The applicant contends that the Authority's failure to consider this claim or integer of this claim constituted jurisdictional error and that the Judge has also not fully considered this integer of this claim. 4 The primary judge rejected the similar ground that was put before him at [77] to [79] of CCW16 v Minister for Immigration & Anor [2017] FCCA 2. 5 The ground in the notice of appeal has four aspects. 6 The first aspect is to the effect that the Authority did not take into account certain risks of harm for returnees to Bangladesh. However, it is clear that the Authority did so in its reasons, in particular, at paragraph 27. The second aspect is an assertion that the applicant is aware of harm happening to returnees. This, however, is an attempt to introduce evidence into the appeal which was not before the Authority and, therefore, it cannot be entertained. 7 The third aspect relates to evidence of the applicant's fear of harm and, to that extent, also cannot be raised in the appeal. 8 The fourth aspect is to the effect that the applicant also implicitly claimed to fear harm as a result of his illegal departure from Bangladesh, should he return. To my mind, this very issue was addressed at paragraph 27 of the Authority's reasons. As a result, I am not able to accept that the Authority failed to consider this matter, nor do I think that any error was made by the Federal Circuit Court in this regard. 9 The submissions that have been made orally today also invite me to make factual findings by challenging the merits of the outcome which was reached by the Authority. As explained at the outset, I do not have the power to review the material and make factual findings. This is the responsibility of the first respondent and the Authority. Having reviewed the material, I am unable to see any jurisdictional error. The result is that the appeal must be dismissed and, there being no reason not to make an order for costs in the usual form, I order that the appellant pay the first respondent's costs of the appeal as agreed or taxed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.