AAD15 v Minister for Immigration
[2017] FCCA 1344
•29 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAD15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1344 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – applicant disbelieved in significant respects and other fears found not to be well-founded – whether the Tribunal overlooked relevant material, breached s.425 of the Migration Act 1958 (Cth), made an unreasonable decision or overlooked a claim considered – whether the Tribunal decision is affected by a non-disclosure certificate considered. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425, 438 |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 566 BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 CKG15 v Minister for Immigration & Anor [2017] FCCA 938 Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 Minister for Immigration v SZRKT [2013] FCA 317 Minister for Immigration v SZSRS [2014] FCAFC 16 MZAFZv Minister for Immigration (2016) 243 FCR 1 Re Minister for Immigration; Ex parte Applicant S154/2002 [2003] HCA 60 Re Minister for Immigration: Ex parte Miah [2001] HCA 22 Singh v Minister for Immigration (2016) 313 FLR 1 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZMUF v Minister for Immigration [2009] FCA 182 W360/01A v Minister for Immigration (2002) 124 FCR 449 WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630 |
| Applicant: | AAD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 547 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Selliah of Rasan T Selliah & Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as further amended on 20 June 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 547 of 2016
| AAD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 February 2016. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The following statement of background facts relating to the applicant’s protection claims and the decision of the Tribunal on them is derived from the submissions of the parties.
Background
The applicant is a national of Sri Lanka who first entered Australia as an irregular maritime arrival in August 2012.
On 12 December 2012, the applicant applied for a protection visa.[1] On 7 September 2013, a delegate of the Minister (delegate) refused to grant the visa.[2] The applicant sought review of that decision, which was affirmed by the former Refugee Review Tribunal (RRT) on 19 January 2015.
[1] Court Book “CB” 10
[2] CB 89
The applicant sought judicial review of the RRT’s decision. By consent, the matter was remitted to the Tribunal for reconsideration.[3]
[3] CB 138
On 28 September 2015, the applicant was invited to appear before the Tribunal to give evidence and present arguments.[4] The applicant attended a hearing on 23 October 2015[5] and, on 5 February 2016, the Tribunal affirmed the decision under review.[6]
[4] CB 147
[5] CB 152
[6] CB 183
The applicant’s claims
The applicant claimed to fear harm on the basis of an imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE). The applicant advanced the following factual claims:
a)in 2003, one of the applicant’s uncles (Nanthan), who was an LTTE cadre, was “kidnapped and killed”; [7]
b)in 2007, the applicant was beaten by members of the Sri Lankan Army (SLA) after he accidentally entered a military zone. This attack left the applicant with scars on his back. On another occasion in 2007, the SLA entered a party at his family’s home, pointed a gun to the applicant’s chest and subsequently tortured his brother;[8]
c)in 2009, the applicant’s paternal uncle (Naveenan) disappeared.[9] Naveenan was an “active member” of the LTTE and had worked in an LTTE hospital. The applicant submitted a photograph of Naveenan and a former LTTE leader at a wedding;
d)the applicant accompanied his aunt to multiple agencies to “complain about the disappearance of her husband” and to seek help finding him. In 2012, the applicant and his aunt, Naveenan’s wife, were asked to report to the CID office in Trincomalee to discuss Naveenan’s disappearance.[10] The applicant was questioned by officers, particularly about his facial scar and his relationship to Naveenan;
e)in February 2012, Sinhalese men threatened the applicant, asking him to hand over the family land;[11]
f)on 23 April 2012, five Tamil-speaking Sinhalese men came to the applicant’s family home and demanded money from the applicant’s father in exchange for Naveenan’s return (the April 2012 incident). The applicant’s father refused and the men then said that “they would kidnap the boy with the scar on his face, which was a reference to [the applicant].” [12] After this incident, the applicant was sent to live in Vavuniya with his aunt. The men returned to the applicant’s family home looking for him in May and July 2012. Since his arrival in Australia, the applicant’s parents had informed him that they had to flee the family home “because of these threats”.[13]
[7] CB 119
[8] CB 39
[9] CB 118
[10] CB 118
[11] CB 39
[12] CB 37
[13] CB 38
The applicant claimed that he would be imputed with having LTTE links on the basis of his family connections (set out above), his illegal departure and having sought asylum in Australia.[14] He further claimed that his facial scar (incurred from a childhood incident) would be seen by the authorities as evidence of his involvement with the LTTE.[15]
[14] CB 130
[15] CB 163
In addition to the above, the applicant claimed that Sinhalese people used their power to dispossess Tamils of their land and wealth.[16]
[16] CB 39
Tribunal decision
The Tribunal summarised the applicant’s claims as they developed at the entry interview, his original protection visa application, before the delegate, and to the RRT, then turned to his evidence before the present Tribunal.
The Tribunal found the applicant to be an “unreliable witness”,[17] which stemmed from the inconsistent, shifting and self-serving nature of parts of his evidence.
[17] at [78]
The Tribunal noted that the applicant’s evidence in his entry interview, statement attached to his visa application, and his oral evidence to the delegate was that he did not know anyone who had ever been in the LTTE or any political group.[18] The applicant, however, claimed to the RRT that he and his family did know two LTTE members, being his uncles Nanthan and Naveenan.[19]
[18] at [22], [32] and [34]
[19] at [35], [39] and [41]
Having regard to the inconsistencies in the applicant’s evidence, the evidence that neither the applicant nor his family had attracted adverse attention, and relevant country information, the Tribunal rejected the applicant’s claims concerning:
a)his facial or back scars leading to him being imputed as an LTTE supporter,[20] or facing greater scrutiny at the airport on his return;[21]
b)he and his aunt being summoned or interrogated by the CID in 2012;[22]
c)the entirety of the April 2012 incident,[23] including any link between the applicant helping his aunt and that incident, or any link between the incident and the Sri Lankan authorities;[24] and
d)the combination of the applicant’s status as someone who departed Sri Lanka illegally and as a failed asylum seeker, leading to him being imputed as an LTTE supporter.[25]
[20] at [78]
[21] at [97]-[98]
[22] at [86]
[23] at [93]
[24] at [86]
[25] at [100], [105]-[106]
The Tribunal did not accept the applicant’s claim regarding his uncle Nanthan, noting that the evidence provided in support of Nanthan’s death indicated that he had died by strangulation, whereas the applicant claimed that he had been shot.[26] While the Tribunal noted the applicant’s response that Nanthan had been both shot and strangled, it found that the applicant had “invented” this claim in order to improve his chances of being granted protection.[27]
[26] at [67]
[27] at [67]-[68]
The Tribunal accepted that Naveenan “might” have given information to the LTTE, that he had been “taken aside at a checkpoint in 2009 and never seen again”, and that this may have been because of locally posted soldiers or paramilitary personnel.[28] However, on the basis of country information, the evidence as to the State’s apparent willingness to help the applicant’s aunt locate Naveenan and evidence that nothing significant had occurred to Naveenan prior to his disappearance in 2009, the Tribunal found that Naveenan was not involved with the LTTE, nor that he would be perceived to have been involved[29]. Further, given the applicant’s evidence that his family had been able to continue “getting on with their lives”, the Tribunal gave no weight to the applicant’s claim for protection on the basis of a perceived link to the LTTE through his uncles.[30]
[28] at [76]-[78]
[29] at [76]
[30] at [77]
The Tribunal accepted the applicant’s claims in relation to the 2007 incidents but found that these incidents were limited to a specific time and place and gave them little weight.[31]
[31] at [96]
The Tribunal did not accept that Sinhalese men had attempted to dispossess the applicant and his family of their land,[32] referring to inconsistencies in the applicant’s evidence, and noting in particular his evidence that his family moved to a smaller farm as it was easier for the applicant’s elderly father to manage.[33]
[32] at [95]
[33] at [36]
The Tribunal accepted that upon return, the applicant would be identified as a returnee to Sri Lanka and would be subjected to questioning at the airport.[34] It further accepted that the applicant might be charged under the Immigrants and Emigrants Act (I&E Act) for illegal departure, but referred to DFAT country information in finding that the I&E Act would not be applied to the applicant in a discriminatory manner, and was a law of general application.[35]
[34] at [105]
[35] at [105] and [109]
The Tribunal accepted that if the applicant were remanded, he would likely be kept in poor conditions.[36] However, it was not satisfied that such conditions would amount to serious harm as defined in the Migration Act 1958 (Cth) (Migration Act).[37] Further, it was not satisfied that the conditions reflected an intention to harm returnees.[38] The Tribunal further found that any fine faced by the applicant would not amount to serious harm, nor that the applicant was likely to face any custodial sentence. The Tribunal was not satisfied that there was a real chance that the applicant would be subjected to serious harm “on the way to, or after his return to, his home province”.[39]
[36] at [108]
[37] at [108]
[38] at [108]
[39] at [110]
In considering the applicant’s claims against the complementary protection criterion, the Tribunal noted that those claims relied on the same facts as his Convention claims.[40] In light of its anterior findings, the Tribunal found that there was no real chance of the applicant facing significant harm.[41] The Tribunal considered whether the applicant faced a real risk of significant harm during processing or while in remand for departing illegally, either from the authorities or other people, and found that he would not. In so finding, the Tribunal was not satisfied that there would be an intention to harm the applicant by detaining him under the I&E Act. It also was not satisfied that the applicant would be tortured or would suffer significant harm of any kind from other people during detention or remand.[42]
[40] at [120]
[41] at [121]
[42] at [123]
Present proceedings
These proceedings began with a show cause application lodged on 10 March 2016. The applicant now relies upon a further amended application tendered in Court by leave at the trial of this matter on 20 June 2017. I gave leave for the applicant to rely upon that application and to file it after the hearing. There are five particularised grounds in the application:
Ground One
1. The decision of the Second Respondent is affected by jurisdictional error in that the Second Respondent overlooked evidence which was cogent and relevant to its decision, being evidence which appeared in the transcript of an earlier Tribunal hearing.
Particulars:
1.1 The Second Respondent had before it a transcript of a hearing conducted by the Refugee Review Tribunal with the applicant, but did not consider this transcript and instead relied upon the decisions record when considering the oral evidence given by the applicant at the at hearing. The summary of the applicant's evidence, “Evidence presented to the previously-constituted Tribunal”, as provided in the decision record of the Refugee Review Tribunal was inaccurate. This inaccuracy was relevant to the Second Respondent's findings at [69-77], [79-92], [93] [95].
Ground Two
2. The Second Respondent engaged in legal error by not inviting the applicant to give evidence and present arguments relating to an issue under review as required under sections 425 of the Migration Act 1958 (Cth).
Particulars:
1.1 The Second Respondent made a finding (paragraph 68) that the applicant located an article about a murdered LTTE cadre called “Nanthan” and built claims around it.
1.2 The Second Respondent made a finding (paragraph 72) that “Later in the hearing, the applicant said the army separated LTTE suspect form the rest of the population; however, this does not sit with independent information cited earlier in the decision with HRW reporting that security forces detained almost all the ethnic Tamils ….” This is a determinative issue of claim and did not arise in the delegate’s decision. The Tribunal failed to put this issue to the applicant. (emphasis added)
1.3 the lack of details mean that the Tribunal is not satisfied that the father was shot because of LTTE connection.
1.4 The The multiple issues raised in paragraph 76 namely (a) “I do not believe that the aunt would have pressed so much for so long for answers if she really believed her husband was really with the LTTE” (b) “I give weigh to the fact that she was able to proceed so long in this matter without being persecuted” (c) “I do not accept on the evidence before me that the uncle ‘Naveenan’ was involved or would be perceived by the authorities or any other parties, such as paramilitaries, to be involved with the LTTE, or that his passing at the crucial time would give rise to imputations that he was connected with the LTTE in any significant or meaningful way” and (d) I do not accept that ‘Naveenan’ was a nom-de-guerre, if it was ever a name the uncle used at all.” These are determinative issues and the issue did not arise in the decisions of the delegate.
1.4 Second Respondent made a finding (paragraph 68) that the lack of details mean that the Tribunal is not satisfied that the father was shot because of LTTE connection.
1.5 determinative issues in paragraph 81 of the applicant seemingly being confused was not put to him or not clarified.
1.6 In paragraphs 69, 76 and 87 the Tribunal did not accept the issue that aunt was persecuted or harmed. This determinative issue was not put to the applicant.
1.7 In paragraph 70, The Tribunal did not put to the applicant the adverse application of the country information to the issue of uncle Naveenan's involvement in intelligence gathering of the LTTE.
1.8 These were determinative issues before the Tribunal and were not raised in the delegate's decision.
Ground Three
The Second Respondent engaged in legal error by coming to a conclusion that was legally unreasonable, illogical and irrational.
Particulars:
1.1 There was evidence that the applicant and his family (except his uncle Naveenan and wife) at the time of the end of war lived in Trincomalee. The applicant reiterated he has been living in Trincomalee. Country information before the Tribunal corroborates that at the end of the war people in the Vanni only were interned and detained in IDP camps. The Tribunal's decision in this aspect is illogical, irrational and unreasonable.
1.2 The rejection of the Naveenan's LTTE connection or perceived connection is not supported by logical or rational reasons.
1.3 The finding that the applicant's aunt was not harmed or persecuted was not open on the evidence.
Ground Four
The Second Respondent committed jurisdictional error by failing to consider or making a finding on a claim or an integer of claim that arose either expressly or clearly on the information and evidence before it.
Particulars:
The Applicant made claim that the authorities will persecute him in future due to the LTTE profile because of his complaints about his uncle's disappearance. This integer of a claim was not considered.
Ground Five
The Second Respondent's decision was affected by jurisdictional error, by failing to find that a purported s 438 certificate was invalid [adn] that the consequent failure to put the material covered by the certificate to the applicant [for] comment constituted a denial of procedural fairness.
Particulars:
The certification in the purported s 438 certificate did not relate to a matter permitted under s 438(1) of Migration Act, with the result [that] it was invalid. The non-disclosure of material before the Tribunal constituted a denial of procedural fairness.
(errors in original)
Particulars 1.3 and 1.4 (second occurring) to ground 2 were not pressed.
In addition to the court book filed on 20 April 2017, I have before me as evidence the following affidavits:
a)the affidavit of Freshta Nawabi made on 6 June 2017, to which is annexed a transcript of the hearing conducted by the Tribunal on 23 October 2015;
b)the affidavit of the applicant’s solicitor Rasan Selliah made on 19 June 2017, to which is annexed the affidavit of Fatima Hammoud made on 25 June 2015 and a transcript of the hearing conducted by the RRT on 16 January 2015; and
c)the affidavit of Kirby Dunlop made on 16 June 2017, to which is annexed the decision of the RRT made on 19 January 2015, correspondence from the Minister’s solicitor to the applicant’s solicitor and a certificate purportedly issued under s.438 of the Migration Act and the documents to which the certificate refers.
At the trial of this matter, the solicitor for the applicant also tendered in Court colour copies of photographs of a wedding ceremony[43] which appear in the court book in black and white, and a higher quality copy of the record of the irregular maritime arrival interview conducted with the applicant on 18 September 2012.[44]
[43] MFI A1
[44] MFI A2
Both the applicant and the Minister prepared pre-trial written submissions and made oral submissions through their representative at the trial on 20 June 2017.
Consideration
Ground 1 – did the Tribunal overlook evidence in the transcript of the RRT hearing?
In this ground the applicant takes issue with the Tribunal’s findings at [69] and [87] as well as further findings at [81] and [93]. The applicant contends that, in making these findings, the Tribunal failed to consider the transcript of the RRT hearing.
There are a number of difficulties with this ground. First, there is no evidence that the Tribunal had available to it a transcript of the RRT hearing. I am willing to infer from the detailed description of the applicant’s evidence presented to the RRT from [33][45] to [47][46] that the Tribunal had regard to something more than the RRT decision in considering that evidence. The presiding member may well have listened to the sound recording of the RRT hearing but it does not follow that he had before him a transcript of that hearing.
[45] CB192
[46] CB195
In any event, I accept, for the following reasons, the Minister’s submission that the material identified by the applicant as having been overlooked by the Tribunal cannot be said to have been centrally important to the Tribunal’s decision-making process.[47]
[47] See Minister for Immigration v SZSRS [2014] FCAFC 16 at [56]; Minister for Immigration v SZRKT [2013] FCA 317 at [111]
When considering whether the failure to take into account an item of evidence constitutes jurisdictional error, the Court is to undertake a qualitative assessment of the nature of the evidentiary material and the place of that material in the assessment of the applicant’s claim.[48]
[48] See eg Minister for Immigration v SZSRS [2014] FCAFC 16 at [56]; Minister for Immigration v SZRKT [2013] FCA 317; and MZYTS v Minister for Immigration [2013] FCAFC 114
The applicant’s submissions recite two portions of what is said to be a transcript of the RRT hearing, which he contends were not considered by the current Tribunal. First, the applicant refers to previous evidence relating to the claimed sexual assault of his aunt. However, it is unclear what relevance this purported evidence had to the applicant’s claims or the Tribunal’s findings at [81] (the paragraph to which the applicant’s submissions referred in support of this contention). Secondly, the excerpt relating to the farm of the applicant’s family is consistent with his evidence to the current Tribunal).[49] Nor can it be said that the purported evidence to the RRT had the “capacity to corroborate the [applicant’s] claims in a material respect.”[50] Even if a transcript of the RRT hearing was before the current Tribunal, the applicant has not established that anything in such a transcript was critical to the process of the current Tribunal’s decision-making such that the Tribunal’s omission to explicitly address it constitutes jurisdictional error.[51]
[49] Transcript, pages 4 and 21
[50] W360/01A v Minister for Immigration (2002) 124 FCR 449 at [30]
[51] See Minister for Immigration v SZSRS [2014] FCAFC 16; Minister for Immigration v SZRKT (2013) 212 FCR 99; MZYTS v Minister for Immigration (2013) 136 ALD 547
Ground 2 – did the Tribunal breach s.425 of the Migration Act?
In this ground the applicant takes issue with the Tribunal’s findings at [68], [72], [76] and [81]. The applicant contends that the Tribunal should have put to him the issue of him having been apparently confused in the presentation of his claims. The applicant further contends that the Tribunal should have put to him country information concerning an alleged relative’s involvement with the LTTE.
I reject the applicant’s contentions. First, given that the applicant did not raise claims relating to either of his uncles before the delegate, it is unremarkable that the delegate made no findings in relation to such claims. These claims were first raised before the RRT, which made findings in respect of the claims similar to those of the current Tribunal. As such, the applicant was clearly on notice that the credibility of the claims was in issue.
Secondly, the Tribunal was neither obliged to provide the applicant with a running commentary on the evidence[52] nor to set out every detail of its reasoning process.It was not obliged to put to the applicant the nature of the case on which the Tribunal proposed to rely in contradiction to his case,[53] or to provide a forewarning of its reasoning.[54]
[52] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [48]
[53] Re Minister for Immigration; Ex parte Applicant S154/2002 [2003] HCA 60 at [54] per Gummow and Heydon JJ (Gleeson CJ agreeing) and at [85]-[86] per Kirby J
[54] Re Minister for Immigration; Ex parte Miah [2001] HCA 22; applied in SZMUF v Minister for Immigration [2009] FCA 182 at [22]
Thirdly, and in any event, the Tribunal took steps to identify during the hearing its concerns with the applicant’s claims, and it cannot be said that he was not on notice of these issues.[55] In particular, the transcript of the Tribunal hearing discloses that the applicant was put on notice that the credibility of his claims was a live issue for determination by the Tribunal.[56]
Ground 3 – did the Tribunal reach a conclusion that was legally unreasonable, illogical or irrational?
[55] see eg. Transcript, page 16
[56] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [35], [47]
In this ground, the applicant takes issue with the Tribunal’s findings concerning the circumstances of the applicant and his family at the end of the Sri Lankan civil war.
There is no substance to this ground. The relevant findings are detailed above at [15]. In my view, the applicant’s disagreement with the Tribunal’s reasoning does not rise above an emphatic expression of disagreement with that reasoning.
Ground 4 – did the Tribunal fail to consider an element or integer of the applicant’s claims?
In this ground, the applicant contends that the Tribunal failed to consider his claim that he would be persecuted in the future because of his complaints about his uncle’s disappearance, which were connected to the activities of the LTTE. I accept that the claim was made but I do not accept that it was overlooked. The applicant’s submissions note that this claim was part of his broader claim that he had an imputed political opinion in support of the LTTE on the basis of his familial links. It is evident from the Tribunal’s reasons that it comprehensively considered and disposed of the applicant’s claim regarding his imputed pro-LTTE profile, including consideration of the applicant’s complaints to the authorities regarding his uncle’s disappearance[57].
[57] at [77]
The Tribunal did not accept that Naveenan had links to the LTTE and it did not accept that the applicant or his aunt were interrogated in 2012, finding that the applicant exaggerated invented claims relating to this uncle.[58] To the extent that the applicant claimed that he would face harm on the basis of his role in complaining to the authorities regarding Naveenan’s disappearance, it was unnecessary to make a specific finding on this particular point because it was subsumed in findings of greater generality, being those set out above.[59]
Ground 5 – did the Tribunal err by failing to find that the purported s.438 certificate was invalid and by failing to put the documents covered by the certificate for comment?
[58] at [76]
[59] WAEE v Minister for Immigration [2003] FCAFC 184 at [47]; (2003) 75 ALD 630, 641 per French, Sackville and Hely JJ
On 21 July 2015, a certificate was issued pursuant to s.438 of the Migration Act in relation to the Department’s file and the Tribunal’s review that is the subject of the current proceedings.[60]
[60] see affidavit of Ms Dunlop affirmed on 16 June 2017
The certificate covers folio numbers 71-75 and 132-133 in the departmental file, being the applicant’s arrival entry interview and documents relating to the remittal of the matter to the current Tribunal, respectively.
I accept the Minister’s submissions in relation to folios 132–133. Those folios were plainly irrelevant to the issues for determination by the Tribunal, and were not adverse to the applicant. Further, the Tribunal plainly had no regard to the documents and “on any view, they can have been of no, or only passing contextual, relevance to the application.”[61] Accordingly, it could not be said that the applicant was denied any opportunity that might have affected the outcome of his application for review, nor did the material enliven an obligation under s.424A.[62] Likewise, there is no basis to infer that the documents led the Tribunal to act on the invalid certificate.
[61] AVO15 v Minister for Immigration [2017] FCA 566 at [87]
[62] BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 at [64] and AVO15 v Minister for Immigration [2017] FCA 566 at [91]
The real issue concerns the record of the applicant’s irregular maritime arrival entry interview, to which the Tribunal specifically referred at [22] of its reasons.[63] That record is folios 71 to 75 as covered by the purported certificate. The Minister relevantly submits as follows:
In relation to folios 71-75 (CB 1), it is apparent from the Tribunal’s treatment of the material that it has not fallen into the errors identified in MZAFZ or Singh. Firstly, beyond the Tribunal’s summary of the applicant’s claims as set out in the entry interview (at [22]), no reference is made to the document in the Tribunal’s decision record. This stands in contrast to the comprehensive and detailed reasons for the Tribunal’s decision. On a fair reading of the Tribunal decision, the Minister respectfully submits that the Court should infer that the Tribunal did not base any of its findings on the entry interview, and that the Tribunal did not act on the certificate. Secondly, in circumstances where the Tribunal disclosed the substance of the entry interview document subject to the certificate in its decision record, it has acted inconsistently with the existence of a valid non-disclosure certificate. Had the Tribunal acted on the certificate, it would have issued a direction under s.440 of the Act as required by s.438(4). Accordingly, it should be inferred that the Tribunal was unaware of the certificate, or considered the certificate to be invalid and did not act on it.[64]
[63] CB 191
[64] CKG15 v Minister for Immigration & Anor [2017] FCCA 938 at [82]
In my view, it is not material whether the Tribunal acted inconsistently with the certificate and I do not accept that the Tribunal was unaware of it. The issue is whether the way in which the Tribunal dealt with, or in this case failed to deal with the certificate, resulted in procedural unfairness. In my view, there was no unfairness because the arrival entry information was made available to the applicant, albeit not in connection with any disclosure of the certificate by the Tribunal.
The information in the entry interview is reproduced in the applicant’s statement attached to his visa application and in the delegate’s decision record, to which the Tribunal did expressly refer. The applicant was on notice of the information contained in the entry interview, having participated in it, and having received a copy of the document in the context of the previous judicial review proceedings.[65] As such, the applicant had access to the document and had an opportunity to address the information arising from the entry interview. Therefore, “it could not readily be said that the applicant was denied any opportunity that might have affected the outcome of his application for review.”[66]
[65] Affidavit of Ms Dunlop affirmed on 16 June 2017
[66] BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 at [64]
In this respect, the Minister relies on the following reasoning in the judgment of Barker J in AVO15 v Minister for Immigration [2017] FCA 566 at [91]:
To the extent that there may have been some technical breach of the disclosure obligations arising under the Act, I do not consider that the applicant lost any opportunity to advance his case by reason thereof. No detriment is shown. No practical injustice is, on any view, identified.
His Honour’s comments are relevant to the present case although the facts are different. No practical injustice or detriment has been suffered by the applicant due to the existence of the certificate and the Tribunal’s omission to disclose the certificate to him. This being so, the applicant has not been denied procedural fairness and the jurisdictional error principles disclosed in MZAFZv Minister for Immigration (2016) 243 FCR 1 and Singh v Minister for Immigration (2016) 313 FLR 1 are not applicable to this case.
Accordingly, I reject Ground 5.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 August 2017
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