Appeal to this Court
46 The appellant now seeks to appeal from the whole of the judgment of the Federal Circuit Court on the following two grounds, both of which on their face are different from those raised in the Court below:
1. The Authority failed to adequately consider the applicant's claim for Complimentary Protection as is required by law as in case SZQRB. Complimentary Protection eligibility was assessed by the Authority at paragraphs 25-28. As per SZQRB the Authority is meant to examine each of the reasons the applicant fears harm and assess them in relation to Complimentary Protection. In the Applicant's case the Authority failed to specifically examine any of the reasons or assess any of the applicant's personal characteristics thus denying him natural justice.
2. The Authority at Paragraph 17 of the IAA decision does not accept claims made by the applicant which were accepted by the Delegate at paragraph 64 of the SHEV application decision and which are supported by DFAT Country Information which was before the Authority, thus denying the applicant natural justice.
47 The appellant did not file any written submissions prior to the hearing of the appeal. However, at the hearing of the appeal he made brief oral submissions to the effect that he was not believed in the Authority decision and would face harm if he had to return to Bangladesh.
48 The Minister filed an outline of submissions in which he summarised the issues on appeal as:
(1) Whether the appellant should be granted leave to raise grounds of appeal which were not raised before the Federal Circuit Court.
(2) If so, whether the Authority failed to adequately consider the appellant's claims for complementary protection by failing to specifically examine any of the reasons or assess any of the appellant's personal characteristics.
(3) If so, whether the Authority denied the appellant natural justice by rejecting claims made by the appellant which were accepted by the delegate.
49 Plainly, the two grounds the appellant raises were not raised in the Court below. The appellant may only rely on them with the leave of the Court. Leave will only be granted where it is expedient in the interests of justice that leave be granted. See MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [61], [101]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46][48].
50 Ordinarily, leave will be refused in the absence of an adequate explanation for the failure to raise the proposed ground in the Court below and where the proposed new ground is of doubtful merit. See APR15 v Minister for Immigration and Border Protection [2017] FCA 713 at [10].
51 Here, the appellant has not proffered any explanation as to why they were not raised in the Federal Circuit Court. Perhaps more significantly, the proposed grounds are also of doubtful merit.
52 As to the appellant's first proposed ground of appeal, as the Minister submits, while it refers to a denial of natural justice, it is perhaps better understood as alleging a failure of the Authority to consider all claims made by the appellant.
53 The Minister acknowledges that the Authority did not separately refer to each of the appellant's claims in its discussion of complementary protection provisions. Rather, the Authority referred back to its findings in relation to whether the appellant met the criteria in s 36(2)(a) and, in particular, its finding that the appellant would not suffer any harm if returned to Bangladesh. The Authority said, at [27] of its reasons:
I am not satisfied that there is a real chance that the applicant would suffer harm of any kind if he returned to Bangladesh. As 'real chance' and 'real risk' involve the same standard, I am therefore not satisfied that there is a real risk the applicant would suffer harm of any kind if he returned to Bangladesh. I am therefore not satisfied there is a real risk that the applicant would suffer significant harm if he returned to Bangladesh.
54 I accept the submission that it is open to a decision-maker to rely on factual findings made in the context of assessing Convention claims (or claims made for the purposes of s 36(2)(a) of the Act) for the purposes of making complementary protection findings, where the same facts and circumstances are relied upon by an applicant for both complementary protection and Convention claims. See MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31]. As a result, [27] of the Authority's reasons should be read in the context of the following factual findings made by the Authority:
(1) the appellant was never accused of murder ([12] of its reasons);
(2) the appellant is a member of the BNP and opposed to the AL, and may again engage in low level political activities for the BNP, but he will not face any harm on this basis ([17], [18] of its reasons);
(3) the appellant had not been a victim of extortion demands from the AL in the past and there is not a real chance he will be targeted for extortion demands in the future, by reason of being a member of the BNP or more generally (17] of its reasons);
(4) the appellant and his family were not previously harmed or threatened by an AL backed gang, referred to by the Authority as the Mr A gang, and he would not be harmed by AL supporters or associated criminal groups if he were to return to Bangladesh ([18] of its reasons);
(5) the appellant will be returning to Bangladesh as a person who departed illegally, and the authorities will be aware of this, and may be aware from the data breach that the appellant was in detention and may infer that he sought asylum in Australia, but there is not a real chance that the appellant would be imputed to be in conflict with the authorities in Bangladesh or be harmed on this basis and/or for reason of his illegal departure, having sought asylum in Australia or for having his personal information released in the data breach ([19]-[22] of its reasons);
(6) there is not a real chance that the appellant would suffer beating, intimidation, extortion threats or any other kind of perpetrated harm if he returned to Bangladesh ([23] of its reasons); and
(7) there is not a real chance that the appellant would suffer harm of any kind if he were returned to Bangladesh ([23] of its reasons).
55 It is quite clear, in my view, that the Authority considered each of the appellant's claims for protection under s 36(2)(a) of the Migration Act and found that there was not a real chance that the appellant would suffer any harm, let alone serious harm. The appellant did not make any claims for the purposes of complementary protection additional to those that he made for the purposes of s 36(2)(a). Based on the Authority's findings of fact just referred to, and in the absence of any further claims relating only to complementary protection, there was no basis on which the Authority could have found that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being returned to Bangladesh, there was a real risk that he would suffer significant harm.
56 In these circumstances, jurisdictional error is not indicated in circumstances where the Authority simply relied on its earlier findings of facts, rather than again setting out each of the appellant's claims under the heading of "Complementary protection" and explaining why it was not satisfied that the appellant will face a real risk of significant harm in relation to each individual claim.
57 Nor is jurisdictional error indicated by the Authority's approach to assessing whether the appellant met the complementary protections provisions.
58 As to the appellant's second proposed ground of appeal, the delegate, at [64], accepted, despite concerns with the appellant's credibility, that the appellant may have been extorted whilst working at his business; was beaten when he refused to pay the extortion money; and his shop was looted and torched. The Authority, at [17], found that the appellant had not been the victim of past extortion.
59 I accept the Minister's submissions that no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme. The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In this regard, there is force in the Minister's submission that the principles in SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 do not apply to reviews under Pt 7AA of the Migration Act. I note, without needing to interrogate the proposition further, that the Federal Circuit Court has accepted the proposition in such decisions as DZU16 v Minister for Immigration & Anor [2017] FCCA 851 at [101]; AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [11]-[12]).
60 Even if the Court were to read this ground as making the broader approach that the appellant was denied natural justice, because of the decision-making process adopted by the Authority in making a different finding of fact to that made by the delegate, there is difficulty with this proposition too. This is because the decision was made in accordance with Pt 7AA of the Migration Act. The key features of Pt 7AA have been outlined above and are set out in appropriate detail in the primary reasons of the judge at [31]-[46], as follows (footnotes omitted):
31. The Fast Track Review Process (FTRP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of the FTRP is to provide a limited, efficient and quick form of review of certain decisions refusing protection visas some applicants, including those who arrived in Australia as unauthorised maritime arrivals on or after 13 August 2012 and before 1 January 2014. Such a reviewable decision is known as 'fast track reviewable decision'. A protection visa applicant whose visa refusal decision is subject to the FTRP is known as a 'fast track review applicant'.
32. The applicant is a 'fast track applicant' as defined in s.5(1), as he arrived in Australia on 2 January 2013, the Minister exercised his discretion under s.46A(2) to lift the bar in s.46A(1), and the applicant lodged a valid application for a SHEV.
33. Pursuant to s.5(1) of the Migration Act, a person is a 'fast track review applicant' if he or she is a fast track applicant who is not an 'excluded fast track review applicant'. The applicant is a fast track review applicant as he is a fast track applicant who is not an excluded fast track review applicant.
34. Subject to certain exceptions which are not relevant for present purposes, a 'fast track decision' is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Accordingly, the delegate's decision on 20 July 2016 to refuse to grant a protection visa to the applicant was a fast track decision, and therefore was also a fast track reviewable decision in accordance with paragraph (a) of the definition in s. 473BB.
35. Part 7AA of the Migration Act establishes a comprehensive scheme of review of fast track reviewable decisions.
36. Division 8 of Part 7AA establishes the Authority, the body conducting reviews of fast track reviewable decisions.
37. Division 2 of Part 7AA sets out the procedure for referring fast track reviewable decisions to the Authority. Under s.473CA, the Minister must refer a 'fast track reviewable decision' to the Authority as soon as reasonably practicable after the decision is made.
38. Once the Minister has referred a fast track reviewable decision to the Authority, s.473CB requires the Secretary of the Department to give to the Authority certain material in respect of that decision at the same time as, or as soon as reasonably practicable after, such referral, namely:
a) a statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and gives the reasons for the decision;
b) material provided by the 'referred applicant' (defined in s.473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under s.473CA) to the decision-maker before the decision was made;
c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; and
d) the applicant's contact details.
39. Subsection 473CC(1) requires the Authority to review a fast track reviewable decision referred to it. Subsection 473CC(2) provides that the Authority may either affirm the decision, or remit the decision for reconsideration in accordance with such directions or recommendations as are permitted by regulation.
40. Division 3 of Part 7AA deals with the manner in which reviews are to be conducted by the Authority.
41. Subsection 473DA(1) provides that Division 3 of Part 7AA, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule 'in relation to reviews conducted by the [Authority]'. This provision is couched in broader terms than ss.357A(1) and 422B(1) and has been found to operate to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the Authority.
42. Subsection 473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the Authority under s.473CB 'without accepting or requesting new information' and 'without interviewing the referred applicant'.
43. However, s.473DC(1) permits the Authority, subject to Part 7AA, to 'get any documents or information (new information)' that 'were not before the Minister when the Minister made the decision under section 65' and 'the [Authority] considers may be relevant'. Subsection (2) confirms the discretionary nature of the power in s.473DC(1) by providing that the Authority 'does not have a duty to get, request or accept any new information whether the [Authority] is requested to do so by a referred applicant or by any other person, or in any other circumstances.'
44. Further, new information can only be considered by the Authority if the requirements of s.473DD are satisfied. Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the 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 s 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.
45. Subsection 473DE(1) imposes certain disclosure obligations on the Authority not dissimilar to those imposed on the AAT by ss.359A and 424A of the Migration Act.
46. Division 5 of Part 7AA contains provisions relating to the exercise of powers and functions by the Authority. Subsection 473FA(1) provides that the Authority, in carrying out its functions under the Migration Act, is to pursue the objective of 'providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).' This reinforces the legislature's aim of establishing a form of review that is limited in scope and efficient. Subsection 473FA(2) provides that, in reviewing a decision, the Authority 'is not bound by technicalities, legal forms or rules of evidence.'
61 The burden of this scheme and these provisions is that the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding. It might be said that this is part of the nature of the fast track system as envisaged by Pt 7AA.
62 Section 473DA(1) of the Migration Act makes clear that Div 3 of Pt 7AA, together with s 473GA and s 473GB, is an exhaustive statement of the natural justice hearing rule in relation to reviews by the Authority. The provision may be contrasted with s 422B(1), which deals with reviews by the Administrative Appeals Tribunal under Pt 7 of the Migration Act. Section 422B(1) provides that Div 4 of Pt 7 is an exhaustive statement of the natural justice hearing rule "in relation to the matters it deals with", suggesting that there is still some scope for the operation of common law principles of natural justice that are able to operate consistently with the provisions in Div 4 of Pt 7. See Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23. Markedly, s 473DA(1) is not qualified in this manner.
63 There is also no equivalent to s 424A of the Migration Act in Pt 7AA, consequently, the Authority appears not to be required to give to the appellant particulars of any information that the Authority considers would be the reason, or a part of the reason, for affirming the decision under review.
64 Finally, the Authority is required, subject to Pt 7AA, to conduct the review without accepting new information (as defined) and without inviting a referred applicant to attend an interview: s 473DB(1). The Authority is only permitted to consider new information where there are exceptional circumstances to justify considering new information and, in cases where the new information is to be given by a referred applicant, the information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and, had it been known, may have affected consideration of the claims: s 473DD. Although, if exceptional circumstances exist, it is permissible for the Authority to take into account new information provided by an applicant, s 473DC(2) makes it clear that the Authority is not burdened with a duty to get, request or accept any new information.
65 Consequently, it would seem to follow that there was no obligation on the Authority to give any notice to the appellant that it may find that he had not been the victim of past extortion and to invite him to comment on this possibility, either in writing or at an interview. Of course, good and reliable decision-making might be enhanced if a decision-maker adopted this course and sought comment. Its ability to do so will, however, be governed by the constraints imposed by s 473DC and s 473DD. But on the facts of this case, there is no basis to conclude that the Authority failed to exercise the decision-making task entrusted to it by the Act, and thereby committed a jurisdictional error.
66 The Minister notes that the appellant raised a ground in the Court below to the effect that the Authority committed jurisdictional error by failing to afford him an oral interview where credibility was in issue. To the extent that that ground overlaps with the present ground 2, I consider there is no identifiable error in the reasoning of the primary judge at [58]-[63] of his reasons.
67 Thus, each of the proposed grounds lacks merit and leave to raise them should be refused.
68 For these reasons the appeal should be dismissed with costs.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.