AAA17 v Minister for Immigration

Case •

[2020] FCCA 233

•

11 February 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAA17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 233
Catchwords:
MIGRATION – Application seeking review of the decision of the Administrative Appeals Tribunal (the Tribunal) – whether the decision was affected by jurisdictional error by reason of an apprehension of bias or actual bias on the part of the Tribunal member – whether the Tribunal misunderstood the applicant’s claim – whether the Tribunal gave proper consideration to the applicant’s claims – whether the Tribunal is obliged to make further inquiries – whether the Tribunal was unreasonable – whether the Tribunal provided reasonable evidence for its findings – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 424A, 430D, 438, 476

Cases cited:

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46;

(2009) 174 FCR 415

Minister for Immigration and Multicultural Affairs v Jia Legeng

[2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679;

(2001) 178 ALR 421; (2001) 65 ALD 1

VFAB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 872; (2003) 131 FCR 102; (2003) 77 ALD 23

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28;

(2001) 75 ALJR 982; (2001) 179 ALR 425

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCAFC 80

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515;

(2006) 231 ALR 592; (2006) 93 ALD 300

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

[1994] FCA 1253; (1994) 124 ALR 265

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALR 630;

(2003) 75 ALD 630

Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389;

(2003) 73 ALD 321

Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510;

(1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39;

(2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB

[2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224

Minister for Immigration & Citizenship v SZGUR [2011] HCA 1;

(2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223;

(2011) 119 ALD 1

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 225

NAST v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 208

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003

[2005] FCAFC 73

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081;

(2016) 243 FCR 1; (2016) 155 ALD 98

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3;

(2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 363 ALR 599;

(2019) 75 AAR 75; (2019) 163 ALD 38

MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68

Hossain v Minister for Immigration and Border Protection [2018] HCA 34;

(2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 359 ALR 1
Applicant: AAA17
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 1 of 2017
Judgment of: Judge Nicholls
Hearing date: 5 February 2020
Date of Last Submission: 5 February 2020
Delivered at: Sydney
Delivered on: 11 February 2020

REPRESENTATION

Applicant: In person
Representative for the Respondents: Ms A. Zinn
Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

  1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

  2. The application made on 3 January 2017 is dismissed. 

  3. The applicant pay the first respondent’s costs set in the amount of $5400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1 of 2017

AAA17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 January 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which on 19 December 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse the grant of a protection visa (“the visa”) to the applicant (CB 104–CB 114).

  2. In evidence before the Court is:

    (1)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”);

    (2)A supplementary bundle of relevant documents – (“SCB”, “RE2”) and

    (3)The affidavit of Ms Katherine Louise Evans, solicitor, of 23 August 2017.

Background

  1. The applicant is a citizen of Malaysia (CB 15). He entered Australia on separate occasions on 16 March 2014 on an electronic travel authority and on 28 September 2014 on a student visa which expired on 31 December 2015 (CB 22; see also [3] at CB 105). His application for the visa was received by the Minister’s department on 22 December 2015 (CB 1–CB 45). The applicant’s claims to protection were contained in his personal statement which was dated 20 December 2015, and attached to his visa application (CB 44–CB 45).

  2. The applicant claimed to fear harm on the basis of his father’s involvement in political protests in Malaysia, and a “protest announcement” (CB 44) which they wrote together. [It is also referred to as the protest letter at [25] at CB 107–CB 108].  

  3. After considering country information, the delegate held that the applicant was not owed protection under s.36(2)(a) or (aa) of the Act ([26] at CB 73 and [30]–[31] at CB 74).

The Tribunal

  1. The applicant applied to the Tribunal for review of the delegate’s decision on 12 April 2016 (CB 76–CB 77).

  2. The applicant attended a hearing before the Tribunal on 16 December 2016 (CB 84–CB 89). In context, this hearing was very short, as it appears as though the applicant did not take documents with him. The hearing was adjourned. It resumed on 19 December 2016 (CB 92–CB 96). The hearing concluded at 2:08PM (CB 96), the Tribunal published its decision record, refusing the grant of the visa, on the same day at 4:40PM (CB 104).  

  3. The Tribunal found that the applicant was not a credible witness, and that he had “fabricated his claims” ([35] at CB 109 see also [38] at CB 110).

  4. An article published in the Economy, which was written two years before the protest that the applicant alleges his father was involved in came to the Tribunal’s attention, as it contained “word for word what the applicant claimed he had written in the protest announcement” also “the bulk of his claim was directly quoted from the article” ([35] at CB 109). The applicant was provided with the opportunity to respond to the Tribunal’s concerns about this evidence ([35]-[36] at CB 109). The applicant admitted to the Tribunal that his claims concerning the protest announcement and “his father’s involvement in the specific protest” was not true ([36] at CB 109).

  5. Further, the Tribunal gave some weight to the fact that the applicant had breached the conditions of his student visa while he was previously studying in Australia ([37] at CB 109–CB 110).

  6. The applicant maintained that “…his father was arrested, detained and physically mistreated in December 2015” in relation to his political opinions. The applicant fears that “the same thing may happen to him” ([39] at CB 109). The Tribunal did not accept this claim, as the applicant failed to provide specific information about his father’s political opinions and why he was allegedly detained and mistreated ([42] see also [44] at CB 110). Further, the applicant “admitted that he had no connections or associations that were connected to his father’s claimed political activities” ([43] at CB 110).

  7. As the Tribunal did not accept the factual basis for the applicant’s claims, (as set out above), it held that the applicant was not owed protection under s.36(2)(a) or (aa) of the Act.

Application to the Court

  1. The grounds of the application to the Court are in the following terms:

    “1. During the process of AAT interview, the officer asked me the questions with aggressive attitude, which caused me so nervous. The officer printed one statement which was the same with mine. I have explained that the statement provided by me actually happened on my father and me. Because of event sensation, someone put our story to the Internet, but this was our true story. I have expained to the AAT officer from head to foot, but the AAT officer did not believe this happened to me, which seriously distorted what I meant.

    2. After my interview, I was refused by AAT so quick. I doubted that whether the AAT officer considered my case seriously. They have not consider what I said earnestly, even worse, they did not do the deep investigation to the Malaysian Society. Due to one same statement the AAT refused me, which is not irresponsible.

    3. I have stated to the AAT officer that if I return Malaysia I would be persecuted repeatedly, but AAT officer did not believe me. They still believed that I applied the onshore protection visa because I would like to stay in Australia, which was so unreasonable. According to my true situation, they even though that my statement provided was copied, but they could not provide any reasonable evidence.

    4. According to the law, I would be protected by the Australian government. I was persecuted by the Malaysian government, so I have to apply the onshore protection visa to stay in Australia. However, the irresponsible working attitude and arbitrary decision caused the refusal of my application, which is so unfair.”

Before the Court

  1. At the hearing the applicant appeared in person.  He was assisted by an interpreter in the Mandarin language.

  2. When given the opportunity to address each of the grounds of the application the applicant did no more than, in essence, repeat what was stated in the grounds.

  3. For the remainder, the applicant complained that the Tribunal did not give him a copy of the Internet article to which it compared his claims and that the decision was arbitrary.

Consideration: The Applicant’s Further Complaints

  1. The Tribunal’s relevant statutory obligation was that found in s.424A of the Act. The Tribunal’s finding that the applicant had fabricated his claims was in part based on what was stated in the Internet article. This information was caught by the obligation set out in s.424A(1) of the Act. That is, the Tribunal was obliged to give this information to the applicant, and give him an opportunity to comment on, or respond, to it.

  2. Despite opportunity the applicant has not put a transcript of the Tribunal hearing into evidence before the Court. The only evidence of what relevantly occurred is what is reported in the Tribunal’s decision record. This reveals that the Tribunal utilised the mechanism available to it in s.424AA of the Act to discharge orally at the hearing the obligation in s.424A of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46).

  3. The Tribunal’s decision record reveals that the Tribunal put to the applicant that it had found an article on the Internet published in “Economy”, (apparently an online publication) and written two years earlier than the claimed incident relating to him and his father, which contained the “material he claimed to have written in a protest letter”.  The Tribunal put to the applicant that ([35] at CB 109):

    “…This article not only included word for word what the applicant claimed he had written in the protest announcement but also the bulk of his claim was directly quoted from the article.2”

    [Footnote Omitted.]

  4. The applicant responded to this ([36] at CB 109):

    “36. When this information was put to the applicant he admitted that his claim about his involvement in the protest announcement and his father's involvement in the specific protest referred to was untrue. However, the applicant stated that his claim that his father had been arrested, detained and physically mistreated was true. He was unable to provide any further details about the reasons for his father's arrest or why he, the applicant, would be at all associated or implicated in anything that happened to his father.”

  5. The complaint now is that the Tribunal should have given him a copy of the article.

  6. While in some circumstances the proper, or meaningful, discharge of the Tribunal’s obligation in s.424A(1) of the Act (see in particular s.424A(1)(a) of the Act – “clear particulars”) may require the provision of the source document in which the information is found. This is not such a case.

  7. The information on which the Tribunal relied was the information in the article which was “word for word” what the applicant had written in his statement of claims for the visa.

  8. The Tribunal’s analysis and decision did not rely on the wording of the information that, in the circumstances presented, was not known to the applicant.  The relevance of the information to the Tribunal’s decision was that what the applicant had subsequently claimed was “word for word” what was written in the article.  The Tribunal made this clear to the applicant at the hearing.

  9. It is difficult to see how the provision of the actual article would have given the applicant any further particularity about the information than what he had already put in his own claims.

  10. Further, the applicant, in response, made no claim that he had no knowledge of this article. Rather, the provision of information to him resulted in his own evidence that his (and his fathers) claimed involvement in the protest, was not true ([36] at CB 109).  No legal error is revealed in the circumstances.

  11. The applicant complained that the decision was arbitrary.  Despite opportunity this was not further explained.  To the extent that this may have been an attempt to argue bias on the part of Tribunal that is addressed below.

  12. If the complaint was meant as an assertion that there was no evidence for the Tribunal’s decision and in particular the critical finding about the fabrication of the claims then this finding was probative of the evidence before the Tribunal, including the applicant’s own evidence.

  13. At its highest this was speculation on the applicant’s part. In any event the applicant also submitted that other people may have written articles about the claimed protest, and that the Tribunal member may have seen these.  The applicant submitted that what he had claimed was true and that other people may have written about it.

  14. The applicant gave no such explanation to the Tribunal when he responded to what the Tribunal had put to him.  To the contrary he said his claim was not true.

  15. In all, no jurisdictional error in the Tribunal’s decision is indicated by the applicant’s oral submissions to the Court.

Consideration: The Grounds of the Application

  1. There appear to be two elements to the assertions in ground 1.

  2. First, that the Tribunal member asked questions at the Tribunal hearing “with aggressive attitude” which caused the applicant to become “so nervous.”

  3. The Minister submitted that this may be an attempt to allege actual or apprehended bias on the part of the Tribunal member. Even if this is what the applicant intended by his ground, it is not made out.  As the Minister submits an allegation of bias is a serious matter, given that unlike other assertions of legal error by an administrative decision maker, bias calls into question the decision maker’s integrity.

  4. I note the relevant tests for bias. The test for actual bias is that the decision maker did not bring an open mind to the proceedings, and the apprehension of bias being that the well-informed lay-observer might reasonably apprehended that the decision-maker might not have brought an open mind to the proceedings (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28).

  5. The applicant was given the opportunity, by orders made by a Registrar of the Court, to file any evidence by way of affidavit in support of his grounds.  Despite that opportunity he has not done so.

  6. What remains therefore, is a mere assertion that the Tribunal asked him questions in an aggressive manner which resulted in his becoming nervous.  The evidence that is before the Court does not illustrate any basis for either of those assertions.  In the absence of any other evidence from the applicant the claim fails at the factual level.

  7. In any event, even if some basis did exist (which in this case it does not) that the Tribunal member spoke aggressively, then the use of “strong” language or “harsh tones” of themselves would not usually give rise to an apprehension of bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [32]).

  8. Nor is bias, or the apprehension of bias, indicated simply because the Tribunal raised its concerns about the applicant’s claims and evidence at the hearing.  The purpose of the hearing is to enable an applicant to give his evidence and make his arguments in relation to the issues in the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63). Such an opportunity can only be meaningful if the Tribunal puts its concerns about those issues to the applicant, or the applicant otherwise understands from the Tribunal’s questions that some aspect, if not all, of his claims, and evidence, is at issue, so that he has an opportunity to respond.

  9. Second, the ground appears to take issue with the Tribunal’s analysis and view of a protest letter which the applicant claimed he had authored, with what had been published earlier in an article in the publication: “Economy” (see above at [16]-[26]).

  10. This aspect of ground 1 directs attention to [35]–[36] of the Tribunal’s decision record (at CB 109):

    “35. For reasons discussed below, the Tribunal formed the view that the applicant is not a witness of truth and that he fabricated his claims for the purpose of obtaining a permanent visa to remain in Australia. Pursuant to section 424AA of the Migration Act the Tribunal put to the applicant that it had found the material he claimed to have written in a protest letter in an article in Economy written two years before the alleged incident. The article not only included word for word what the applicant claimed he had written in the protest announcement but also the bulk of his claim was directly quoted from the article..2

    36. When this information was put to the applicant he admitted that his claim about his involvement in the protest announcement and his father's involvement in the specific protest referred to was untrue. However, the applicant stated that his claim that his father had been arrested, detained and physically mistreated was true. He was unable to provide any further details about the reasons for his father's arrest or why he, the applicant, would be at all associated or implicated in anything that happened to his father.”

    [Footnote Omitted.]

  11. In short, the ground complains that the Tribunal “seriously distorted” what the applicant had “meant”, presumably in putting forward this claim and the Tribunal’s view of his explanation in light of its concerns.

  12. The difficulty for the applicant now is that what he “meant” can only now be assessed by the evidence available to the Court as to what he actually told the Tribunal at the hearing.

  13. As set out above, despite opportunity to do so, the applicant has not provided any transcript of the Tribunal hearing.  The only relevant evidence before the Court are the references to what was said in the hearing as contained in the Tribunal’s decision record.

  1. There is nothing in the evidence to reveal that the Tribunal misunderstood or “distorted” the applicant’s evidence or his explanation for the identical wording between his protest letter and the article (not authored by him) in a earlier publication and which was available on the Internet.

  2. It must be said that it is difficult to accept the applicant’s claim now that he explained “from head to foot” (comprehensively?)  That what was written in his protest letter had actually occurred to him and his father.

  3. The evidence before the Court reveals that the Tribunal squarely put to the applicant that what he claimed had occurred to him and his father had been copied from an article found on the Internet ([26] at CB 108 [35] at CB 109).

  4. The applicant’s explanation was “…that he was not sure if his father was an organiser of the protest or not” ([27] at CB 108).  Further, and importantly, that (at CB 108):

    “28. The applicant responded to the second point and said that his agent wrote his statement of claims. He is aware that the statement of claims is not true. However, his father was arrested and beaten as he claimed. He doesn't know the reasons for his detention and mistreatment. There is no direct connection to the applicant. He is just worried that what happened to his father will happen to him.

    29. The applicant said that there were no other reasons he feared returning to Malaysia.”

    [Emphasis Added.]

  5. In the absence of any evidence to contradict the Tribunal’s report of what the applicant said, this complaint in ground 1 fails at the factual level.

  6. Third, if the complaint here is that the Tribunal should have accepted his claim as initially put, then the Tribunal was under no obligation to uncritically accept the applicant’s claims (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253).

  7. In all, on the evidence before the Court, the Tribunal’s finding that the applicant had fabricated his claim was reasonably open to it, and for which it gave cogent and intelligible reasons.  Ground 1 is not made out.

  8. Ground 2 asserts that the Tribunal made a “hasty” decision after the hearing, and thereby failed to properly consider what the applicant had said. Further, and in the applicant’s contention “even worse”, the Tribunal did not “…do the deep investigation with the Malaysian Society”.

  9. The evidence before the Court, reveals that the applicant was initially invited to a hearing scheduled for 16 December 2016. The hearing commenced at 2:12PM on that day (CB 87), but was adjourned to enable the applicant to “Bring letters written for protest” (CB 89). The hearing resumed at 1:03PM on 19 December 2016 (CB 94) and concluded at 2:08PM (CB 96). The Tribunal’s decision statement was made at 4:40PM on the same day (CB 104). In this context the complaints appear to be as follows.

  10. One, the Tribunal did not give proper consideration to his claims. The mere fact that the Tribunal made its decision within about 2 and a half hours after the hearing concluded does not of itself mean that it failed to properly consider the applicant’s claims. After all it is open to the Tribunal in certain circumstances, as contemplated by the Act, to deliver its decision orally at the conclusion of the hearing (s.430D of the Act).

  11. Rather an allegation of a failure to properly consider claims must be determined with reference to the claims expressly made and clearly arising from the circumstances presented and the reasons given by the Tribunal for the findings which informed its ultimate conclusion. (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26).

  12. In this light there is nothing to indicate that the Tribunal overlooked, or misunderstood any aspect of the applicant’s claim to fear harm.

  13. Nor did the applicant present a detailed, or complex, set of claims with comprehensive detail as to why he feared returning to Malaysia.  In essence the applicant’s claim was that he feared harm because of his and his father’s participation in a protest about electricity and road toll charges.

  14. The Tribunal found that this claim was a fabrication. It gave cogent reasons for this, probative of the evidence before it.  The time taken to reach this conclusion does not, given what was before the Tribunal, reveal a hasty or ill-considered analysis.  No legal error is revealed in this regard.

  15. The second element of the complaint in ground 2 lacks particularity (no “investigation”). Nor did the applicant provide any satisfactory explanation for it before the Court. In the circumstances it is not for this Court to speculate as to what the applicant meant by this complaint.  In any event, if what is meant is that the Tribunal should have made inquiries about the protest, or about electricity or road toll charges in Malaysia, or even an investigation generally into Malaysian society, than the Tribunal was under no obligation to do so.

  16. As the Minister submitted the Tribunal was not required to make out the applicant’s case for him (Abebev The Commonwealth [1999] HCA 14). It was the applicant’s task to provide sufficient detail and argument such that the Tribunal could be satisfied that the applicant met one of the criteria for the grant of the visa.

  17. There is nothing in the evidence before the Court to say that the circumstances of this case obliged the Tribunal to make inquiries on the applicant’s behalf, or otherwise, or further inquiries about his claims (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 and Minister for Immigration & Citizenship v SZGUR [2011] HCA 1).

  18. Ground 2 is not made out.  In the circumstances it is an attempt to ask the Court to engage in impermissible merits review.

  19. Ground 3 asserts a number of complaints about the Tribunal’s decision.

  20. One, it appears the ground complains that the Tribunal did not believe the applicant in circumstances where he told the Tribunal that if he returned to Malaysia he would be persecuted. This appears to be another attempt to express grievance with the Tribunal’s credibility finding.  It fails for the same reasons already set out above.

  21. Two, the ground appears to contend that it was unreasonable of the Tribunal to believe that the applicant applied for protection because he “would like to stay in Australia”.

  22. Contrary to what is implicit in this assertion the Tribunal did not arbitrarily, or capriciously, form the view that the applicant had fabricated the central part of his claim.  As set out above, the Tribunal’s conclusion arose from the circumstances before it and the applicant’s unsatisfactory explanation for the presentation of his claims in identical terms to an article published, and available on the Internet prior to the applicant preparing his claim.

  23. Unreasonableness, or for that matter illogicality, is not made out simply because an applicant is aggrieved by the Tribunal’s conclusion and the findings on which that conclusion is based.

  24. Three, the ground asserts that the Tribunal did not provide any “reasonable evidence” to find that the applicant’s statement was copied.

  25. The ground misunderstands that it was for the applicant to provide sufficient detail and satisfactory explanation such that the Tribunal could reach the requisite level of satisfaction that the applicant met either of the criteria for the grant of the visa.  It was not for the Tribunal to provide evidence to disprove the applicant’s claims (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]-[16]; NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4]-[5] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

  26. Further, on the evidence before the Court, the evidence on which the Tribunal relied, in large part was the applicant’s own evidence given by him at the Tribunal hearing that the specific claim was not true.  Again in the circumstances, and for the reasons set out above, this is another attempt at expressing grievance with the merits of the Tribunal’s decision.

  27. Ground 4 asserts that the Tribunal was irresponsible in its attitude and made an arbitrary decision. No particulars, let alone meaningful particulars, are provided. Given what the applicant submitted to the Court, this again is yet another attempt at requesting impermissible merits review.

  28. None of the grounds of the application reveal jurisdictional error in the Tribunal’s decision.

The Certificate

  1. As a model litigant the Minister also raised the following. The departmental file relevant to the applicant’s application for the visa contained a certificate issued pursuant to s.438(1)(a) of the Act (CB 82). The certificate is said to apply to two folios (47, 60) on the Minister’s departmental file.

  2. The Minister conceded that the certificate is invalid for the reasons set out in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 at [37]. However, the Minister submitted that no jurisdictional error is revealed because the documents which were the subject of the certificate could not have realistically been of any material relevance to the outcome of the Tribunal’s decision.

  3. The documents are in evidence before the Court as annexures to a sealed exhibit to the affidavit of Ms Evans. For the reasons below I agree with the Ministers submission.

  4. One, there is no reference to the certificate, or the documents, in the Tribunal’s decision. In all the circumstances, it is reasonable to infer that the Tribunal took no account of them (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”) and MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68).

  5. Two, and further, the documents cannot be said to have been material to the Tribunal’s consideration such that the failure to refer to, or disclose the documents, could have made any realistic difference to the Tribunal’s decision (SZMTA and Hossain v Minister for Immigration and Border Protection [2018] HCA 34).

  6. The documents were a departmental processing checklist (folio 47) and the “Disclosure Decision Checklist” (folio 60). They were, at best, administrative in nature. Nothing in the documents can be said to have been capable of materially affecting the outcome of the Tribunal’s decision.

Conclusion

  1. There is nothing before the Court to reveal jurisdictional error in the Tribunal’s decision.  It is therefore appropriate to dismiss the application.  I will make that order.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 11 February 2020

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