Federal Court Rejects Claimant’s Appeal Application

OUTCOME: Dismissed

Federal Court of Australia

AQA19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 929 Appeal from: AQA19 v Minister for Immigration [2019] FCCA 3002

File number: NSD 1870 of 2019

Judgment of: PERRAM J

Date of judgment: 9 August 2021

Catchwords: MIGRATION – application for extension of time and leave to appeal from Federal Circuit Court decision dismissing judicial review application – where Immigration Assessment Authority affirmed delegate's decision to refuse protection visa – where proposed grounds concern application of complementary protection test and procedural fairness

Legislation: Federal Court of Australia Act 1976 (Cth) ss 24(1), 24(1A) Migration Act 1958 (Cth) ss 36(2), 36(2A), 473DA, 473DC, 473DD(a), 473GB Federal Circuit Court Rules 2001 (Cth) r 44.12

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 13

Date of hearing: 5 August 2021

Counsel for the Applicant: [redacted]

Solicitor for the First Respondent: [redacted]

Counsel for [RESPONDENT] Respondent: [redacted]

ORDERS NSD 1870 of 2019

BETWEEN: [APPELLANT]19 Applicant

AND: [APPELLANT] FOR IMMIGRATION, CITIZENSHIP, [APPELLANT] AFFAIRS First Respondent

IMMIGRATION ASSESSMENT AUTHORITY [RESPONDENT] Respondent

order made by: PERRAM J DATE OF ORDER: 9 August 2021

THE COURT ORDERS THAT:

1. The application for extension of time and leave to appeal dated 12 November 2019 be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J: 1 This is an application for an extension of time and leave to appeal from a decision of the Federal Circuit Court: AQA19 v Minister for Immigration [2019] FCCA 3002 ('AQA19'). The proceeding in that court related to the Applicant's efforts to secure the grant to him of a [NAME] (Subclass 790) Visa ('SHEV'). A SHEV is a species of protection visa. It is available, generally speaking, when an applicant is able to satisfy the decision maker that they have a well-founded fear that, if returned to their country of origin, they will face persecution on grounds of race, religion, politics or membership of a particular social group: s 36(2)(a) of the Migration Act 1958 (Cth) ('the Act'). It may also be granted where an applicant satisfies the decision maker that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant's removal from Australia there is a real risk that the applicant will suffer significant harm: s 36(2)(aa).

Application For Extension of Time and Leave to Appeal 2 The Applicant is a citizen of Bangladesh. A delegate of the First Respondent ('the Minister') rejected his application for a SHEV and the Immigration Assessment Authority ('the Authority') affirmed this decision on review. It was the Authority's affirmation decision which the Applicant sought to challenge in the Federal Circuit Court. The Federal Circuit Court refused his application, dismissing it on the basis that it had not 'raised an arguable case for the relief claimed' within the meaning of r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) ('FCCR'): AQA19 at [18]. Such a determination is deemed to be interlocutory by FCCR r 44.12(2). The immediate consequence of that deeming is that leave of this Court is required before any appeal may be brought from such a decision: Federal Court of Australia Act 1976 (Cth) s 24(1)(d) and (1A). The Applicant has applied for that leave although he was 8 days late in doing so. Consequently, he has also applied for an extension of 8 days so that his application for leave to appeal may be brought. 3 The application was heard on Thursday 5 August 2021 which was during the period during which Sydney was in lockdown as a result of the spread of the Delta variant of the SARS-CoV-2 virus. The Applicant was in lockdown in the area of Sydney where he lives. He informed my Chambers that he did not have access to a computer or a mobile phone with which he could participate in a virtual hearing. Ultimately, the hearing was conducted in the form of a [NAME] meeting with the Applicant dialled in via telephone. Since he does not speak English fluently an interpreter was provided who was also on the telephone (at a different location). The Minister's representative, Ms [COUNSEL], took part in the virtual hearing in a visible manner with her device's camera enabled, as did I. The Minister's written submissions were translated for the Applicant during a short adjournment. Ultimately, he did not seek to make any oral submissions in support of his application.

Grounds of Appeal if Extension and Leave Granted 4 From the documents which he has filed it is apparent that the Applicant proposes to pursue two grounds of appeal if permitted to appeal. The first is that the Authority failed explicitly to disaggregate the statutory formulae under s 36(2)(aa) of the Act. [RESPONDENT] is that it denied him procedural fairness. 5 I do not think that either proposed ground of appeal is viable.

Ground One 6 As to the first, s 36(2)(aa) of the Act provides that it is a criterion for the grant of a protection visa (which would include a SHEV) that: a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm 7 Section 36(2)(aa) is referred to as 'complementary protection' and is an enactment which has some connection with Australia's non-refoulement obligations. The reference to 'significant harm' in s 36(2)(aa) is fleshed out in s 36(2A) in these terms: (2A) A non‑citizen will suffer significant harm if: (a) the non‑citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non‑citizen; or (c) the non‑citizen will be subjected to torture; or (d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non‑citizen will be subjected to degrading treatment or punishment. 8 The Authority set out these requirements at [53] of its reasons and then dealt with them at [54]-[55]: I have concluded there is not a real chance the applicant will face any harm from the [NAME] party, members or supporters, or the government because of his involvement with [NAME] [NAME], or because of his family and relatives' involvement with and support for the BNP, or because of his involvement with BNP Australia and attendance at protests against the [NAME[NAME] and government and its actions, or for any affiliation with the BNP or [NAME] [NAME], or for any other reason, including his illegal departure and that he sought asylum in Australia. I am similarly not satisfied there is a real risk of any harm, including significant harm on these bases. I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm. 9 I am unable to see how it can be said that the Authority failed to disaggregate the requirements of s 36(2)(aa). It identified each of the requirements in s 36(2)(aa) in [55] and unpicked the meaning of 'significant harm' in [53]. It answered those questions in [54] by reference to the findings it had made in relation to the Applicant's claims. I do not accept that the Authority failed in the way suggested. This was also the view of the primary judge who concluded at [14] that whilst the Authority's assessment did draw on anterior factual findings, he could find no error in that approach. Consequently, I do not accept that the proposed first ground of appeal has any prospects of success.

Ground Two 10 As to [RESPONDENT] ground – that the Authority denied the Applicant procedural fairness – there is the difficulty that Div 3 of Pt 7AA of the Act, together with s 473GA and s 473GB, is an exhaustive statement of the natural justice hearing rule in relation to reviews undertaken by the Authority: s 473DA. It is not therefore enough to say that there has been a denial of procedural fairness. Rather, one must point to some aspect of Div 3 of Pt 7AA which has miscarried. The Applicant did not identify any provision which he said that the Authority had misapplied. 11 I have reviewed the Authority's reasons to see whether such an argument might nevertheless be available. The Authority has a power to receive 'new information' from an applicant (s 473DC(1) of the Act) and to hear from an applicant (s 473DC(3)(b)). The Applicant provided two pieces of 'new information', a written submission and excerpts of country information, which the Authority declined to consider on the basis that the Applicant had failed to demonstrate 'exceptional circumstances' as required by s 473DD(a). It is also clear that the Authority did not interview the Applicant. Again, however, the Authority is ordinarily under no obligation to do so. I accept that in some circumstances it may be possible to conclude that the Authority has erred in not interviewing an applicant but I can discern nothing in this case which might have required the Authority to take a different course to the one it adopted. 12 Whether as to the new information which it did not receive or the fact that it did not interview the Applicant, I am unable to detect any error in either. No argument is reasonably available on the basis of these provisions. Consequently, I conclude that the Applicant's [RESPONDENT] ground is not viable even if it is reimagined as a case under s 473DC(1), (3)(b) or s 473DD(a). For completeness, I have read the Authority's decision with some care and was unable to detect any other plausible ground of judicial review.

Conclusion and Orders 13 It follows that extending time to permit the Applicant to seek leave to appeal would serve no purpose. Leave would not be granted even if an extension of 8 days were to be granted because the proposed grounds of appeal do not enjoy sufficient prospects of success to warrant a grant of leave to appeal. The application dated 12 November 2019 must be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Associate: Dated: 9 August 2021