DSO17 v Minister for Home Affairs

1. The application be dismissed.
2. The Applicant pay the First Respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This is an application for an extension of the time within which to bring an appeal from orders made by the Federal Circuit Court on 16 February 2018: DSO17 v Minister for Immigration [2018] FCCA 1238. That Court refused the Applicant's application for judicial review of a decision made by the Immigration Assessment Authority ('the Authority') on 21 July 2017. The Authority affirmed an earlier decision of a delegate of the Minister to refuse to grant the Applicant a safe haven enterprise (Class XE) visa ('protection visa'). 2 The Applicant is a stateless man from Bangladesh and of Rohingya ethnicity. He arrived in Australia on 1 November 2012 as an unauthorised maritime arrival. On 19 January 2016 the Minister received the Applicant's application for a protection visa. On 20 February 2016 the Minister requested that the Applicant provide, in support of his application, documentary evidence of identity, nationality or citizenship. The Applicant provided a letter in response to that request on 9 April 2016. The Minister invited the Applicant to attend a protection visa interview and the Applicant provided written submissions by email in support of his application. On 29 December 2016 a delegate of the Minister refused to grant the Applicant a protection visa. 3 The Minister referred that decision to the Authority for review on 9 January 2017 along with copies of all documents considered relevant to the application. The Minister also provided the Authority with two certificates made under s 473GB of the Migration Act 1958 (Cth) ('the Act') concerning certain documents for which disclosure was prohibited or redacted, including identity interview and integrity documents. The Applicant provided the Authority a submission on 16 February 2017. The Authority had regard to the submission as it considered it only to be argument and as not containing any new information (cf s 473DD of the Act). 4 Whilst it held some doubts about particular aspects of the Applicant's personal and family history, the Authority accepted that the Applicant was a stateless person from Bangladesh of Rohingya ethnicity. In considering the Applicant's specific claims of harm suffered in Bangladesh, the Authority identified some inconsistencies that emerged between the Applicant's arrival interview and his visa application. For example, the Authority noted that the Applicant had not told the Department about the harm he claimed to have suffered in daily life during the arrival interview and that, had the Applicant in fact been subjected to regular assaults for being Rohingya, this would have been raised in the course of the interview. 5 The Authority found that the Applicant may have been the target of occasional teasing and altercations as a child, but did not believe that this amounted to serious harm of systematic and discriminatory conduct. The Authority, after reviewing available country information, found that the Rohingya were subject to low levels of discrimination in Bangladesh but were not altogether prevented from participating in Bangladeshi society. 6 The Authority also considered the Applicant's claim that he feared harm from his employers. The Authority accepted that the Applicant may have had altercations with his employers over wages, but did not accept that the Applicant suffered assaults at their hands. 7 The Authority was not satisfied that the Applicant had a well-founded fear of serious harm in Bangladesh on the basis of his ethnicity either from the Bangladeshi community or prospective employers. The Authority expressly noted that the Applicant's parents were from different communities--his mother being Bangladeshi, and his father from Myanmar--and that they appeared to have been accepted in the community. 8 The Authority consequently found that the Applicant did not meet the definition of refugee in s 5H(1) of the Act and therefore did not meet the refugee protection obligations criterion in s 36(2)(a) of the Act. Further, the Authority found that the complementary protection obligations in s 36(2)(aa) were not engaged. The Authority affirmed the delegate's decision. 9 By application filed on 18 August 2017, the Applicant sought judicial review of the Authority's decision in the Federal Circuit Court. In that Court, he pleaded five grounds of review. First, the Applicant was a stateless ethnic Rohingya who was unable to relocate due to discrimination against the Rohingya throughout Bangladesh and was otherwise unable to seek assistance from police or local government. Secondly, the Applicant feared persecution throughout Bangladesh. Thirdly, Australia owed him an obligation of protection. Fourthly, the decision of the Authority was affected by legal error. Fifthly, the Authority failed to consider relevant information. 10 The primary judge found that none of the pleaded grounds established any proper grounds of review or identified any jurisdictional error, and instead merely set out his claims. His Honour also had regard to a written submission prepared by the Applicant, but was not satisfied that it disclosed any jurisdictional error. Finally, his Honour considered the Authority's decision in itself, but did not find any jurisdictional error. Consequently, his Honour dismissed the application. 11 The Applicant now seeks an extension of time in which to bring an appeal from the primary judge's decision. That application was brought five months and one day out of time. In an affidavit dated 6 August 2018, the Applicant explained the delay on the basis that he was unaware of the time limit in which to appeal, that he did not have - and was unable to obtain - legal assistance or other support, and that he is illiterate. 12 I would not be disposed to grant an extension of time to the Applicant unless I was first satisfied that his appeal was of sufficient merit to warrant the public expense in hearing it. In this case, I am not satisfied that the proposed appeal has any merit in the sense that, were it to be filed, it seems the Minister would be entitled to have it disposed of summarily. Consequently, the application for the extension will be refused. 13 My reasons for this are as follows. The merits of the proposed appeal may be gauged by the merits of the proposed draft notice of appeal. It is in the following terms: 1. The primary judge erred in dismissing an application for judicial review without giving consideration to material facts and unreasonableness of IAA. 2. The primary judge consequently erred in dismissing the proceedings pursuant to the Federal Court Rules 2011. 3. The certificate issued under s473GB of Migration Act and information contained in the certificate was not provided to the Appellant accordingly the primary judge and made legal error. 4. Substantial injustice would be caused if leave is refused as the judgment: a. has denied a natural justice hearing without considering legal mistakes by the IAA; b. The IAA committed jurisdictional error by failing to take into account a relevant consideration about appellant circumstances as Rohingya and stateless person. c. The IAA failed to take relevant considerations and denied procedural fairness in Appellant claims of fear for safety and harm at the hands of local community and employer as Rohingya. 14 The first proposed ground involves two propositions. First, that the Federal Circuit Court did not give consideration to the material facts; and secondly, that it did not consider the unreasonableness of the Authority. However, it is not said what the material facts which the Court did not consider were. This makes the contention impossible to assess. As to whether the Court considered the unreasonableness of the Authority, I was not taken to any material which suggested that such an argument had been put to it. Ground 1 does not, therefore, disclose any viable complaint about the reasoning of the Court below. 15 Ground 2 is a corollary of ground 1 and adds nothing to it. Consequently, since ground 1 may not be maintained neither may ground 2. 16 Ground 3 involves a contention that the Court below had erred in not concluding that the Applicant should have been provided with information contained in a certificate issued under s 473GB of the Act. It is not disputed that two such certificates were provided by the Minister to the Authority dated, respectively, 30 December 2016 and 6 January 2017 presumably under s 473DC. It does not appear that these certificates were provided to the Applicant although s 473GB(3)(b) would have permitted them to be disclosed to the Applicant after having had regard to any advice received from the Secretary to the Department. It is not clear whether the Authority considered the exercise of that power and decided not to exercise it or whether it did not turn its mind to the issue. One of the reasons for the lack of clarity is, most likely, that this issue was not raised at first instance. 17 There is a line of cases concerned with Part 7 and an equivalent provision to s 473GB (s 438) which suggests that procedural fairness may require the decision maker to disclose the existence of an equivalent certificate under Part 7 (see, most recently, Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 at 608 [27]-610 [38] per Bell, Gageler and Keane JJ). That reasoning is critically based on s 422B (see [33]-[37]) which does not relevantly exclude procedural fairness obligations in relation to such certificates. In the case of Part 7AA it is clear that it is an exhaustive statement of what procedural fairness requires for this is what s 473DA(1) says ('This Division, together with s 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule…'). Consequently, it is not possible to reason from cases like SZMTA to the conclusion that the Authority was required to disclose the existence of any certificate under s 473GB: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at 144 [100]. This conclusion was recently reached by the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, and the publication of these reasons was halted in anticipation of that decision. 18 It follows that proposed ground 3 cannot succeed. It is not necessary, in that circumstance, to deal with the Minister's submission that this point was not raised at first instance and should not be permitted now to be raised. 19 Ground 4 involves a contention that substantial injustice would be visited upon the Applicant were leave to be refused. I take this ground to be directed at the requirements of the second limb of the test for leave to appeal articulated in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. Since it is plain that it will be satisfied in this case (if leave is not granted the Applicant will lose) there would appear, at first blush, to be no utility in deciding it. However, three particulars were provided to ground four and these would appear to be freestanding grounds of appeal requiring separate treatment. 20 The first was that the Authority had denied the Applicant natural justice by not giving him a hearing. This contention is inconsistent with s 473DB which requires the Authority to conduct its review without a hearing. 21 The second was that the Authority had failed to take into account a relevant consideration, namely, that he was a stateless Rohingya. However, the Authority expressly dealt with this issue. It accepted at [24] that he was a Rohingya, that his father was stateless and that he consequently was not a citizen of Bangladesh. It also concluded that a 2009 law of Bangladesh which gives citizenship to children of Bangladeshi mothers did not apply to the Applicant and that he was not eligible for Bangladeshi citizenship. Consequently, the Authority did not fail to take this matter into account. It took it into account in the Applicant's favour by accepting it. 22 The third was a submission that the Authority had failed to take into account, or had not heard him on, the proposition that he feared for his safety if returned at the hands of the local community and/or employers. However, the Authority expressly took both of these matters into account. It dealt with the Applicant's concerns about what would happen to him at the hands of the local community at [32]-[36] under the heading 'Fear of Harm from the Local Community' and with his concerns about employers at [37]-[45] under the heading 'Fear of Harm from Employers'. In relation to both of those topics, there can have been no breach of the rules of procedural fairness because Part 7AA did not explicitly require the Authority to give him a hearing in relation to those matters and because there is no room for any broader notion of procedural fairness in light of s 473DA. 23 In those circumstances, the proposed notice of appeal has no prospects of success and leave should not be granted to bring an appeal out of time. The application will be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.