ADO16 v Minister for Immigration
[2018] FCCA 334
•14 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADO16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 334 |
| Catchwords: MIGRATION – Application for review of decision by AAT to refuse protection visa – failure to disclose s 438 certificate – certificate invalid – jurisdictional error but documents innocuous – applicant not deprived of possibility of successful outcome – relief refused on discretionary grounds. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 438, 477 |
| Cases cited: BEI15 v Minister for Immigration [2016] FCCA 2978 Singh vMinister for Immigration and Border Protection [2016] FCCA 2464 Stead v SGIC (1986) 161 CLR 141 |
| Applicant: | ADO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 4 of 2016 |
| Judgment of: | Judge Young |
| Hearing date: | 24 March 2017 |
| Date of Last Submission: | 24 March 2017 |
| Delivered at: | Darwin |
| Delivered on: | 14 February 2018 |
REPRESENTATION
| The Applicant: | In Person By Videolink |
| Counsel for the Respondents: | Mr Liveris |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Time is extended to 19 January 2016.
The application filed 19 January 2016 is dismissed.
The applicant is to pay the costs of the Respondents in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 4 of 2016
| ADO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 15 October 2015 affirming a decision of the Minister’s delegate made on 19 December 2014 to refuse the applicant a protection visa.
The history of the matter is relevant. The applicant is a citizen of Bangladesh. He entered Australia in February 2013. On 8 and 11 March 2013 he participated in entry interviews with a departmental officer. On 14 June 2014 he applied for a protection visa, supported by a statutory declaration. A qualified Bengali interpreter certified that the statutory declaration had been interpreted to the applicant. The delegate refused the application on 19 December 2014. The applicant applied for a review of the delegate’s decision to the Tribunal. The Tribunal conducted a hearing on 2 February 2015 and affirmed the delegate’s decision on 5 February 2015.
On 4 May 2015 the Minister consented to an order quashing the Tribunal’s decision on the basis that it had had erroneously treated the application as one for a protection visa (class XA) rather than an application for a protection visa (class XD).
On 7 October 2015 a second Tribunal, differently constituted, heard the application. On 15 October 2015 the second Tribunal set aside the delegate’s decision to refuse a protection visa (class XA) and substituted a decision to refuse a protection visa (class XD).
On 14 January 2016 the applicant applied for judicial review of the Tribunal’s decision. The time for making the application expired on 19 November 2015 and the application is 61 days out of time. The applicant seeks an extension of time.
When the matter came on for hearing on 6 December 2016 counsel for the Minister advised the court that a certificate under section 438 of the Migration Act 1958 (“the Act”) in respect of certain documents had been given to the second Tribunal prior to the hearing. The existence of the certificate had not been revealed to the applicant. Counsel conceded that the certificate was invalid. Counsel advised that the Minister had filed an appeal in Singh vMinister for Immigration and Border Protection [2016] FCCA 2464, a relevant decision of the Federal Circuit Court, and was considering an appeal in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081, a relevant decision of the Federal Court. Counsel sought an adjournment of the hearing on the basis that the outcome of the appeal or appeals in those matters would be likely to resolve or simplify the issues in the present matter. The applicant did not oppose an adjournment and I granted the adjournment.
When the matter came on for hearing on 24 March 2017 counsel for the Minister advised that the decision in Singh had been affirmed by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2016) FCAFC 183 but the Minister had sought special leave to appeal to the High Court (which was subsequently refused). A further adjournment was sought by the Minister. The applicant did not consent to the adjournment and I refused the application.
The applicant was not legally represented at any stage and his application was not drafted with legal assistance. There was a single ground of review in the application:
The decision was not made according to law.
The grounds of application for extension of time were as follows:
1. I have been unable to secure legal assistance.
2. I was unaware that there was a time limit, and I am in immigration detention and found it difficult to speak to lawyers to get legal advice, including advice as to time limits.
3. I have a history of trauma that has impacted on my mental health and therefore my ability to understand my migration process.
At the hearing the applicant was assisted by an interpreter. I asked the applicant to describe in more detail his complaints about the Tribunal decision. He was unable to identify any jurisdictional or legal error but repeated the substance of his application to the Tribunal. A failure to particularise a ground of review is sufficient basis for dismissing an application: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760. However, as Flick J pointed out in BGZ15 v Minister for Immigration (2017) FCA 1095 a court should ensure that an unrepresented litigant suffers no meaningful disadvantage because he or she does not have the skills or knowledge of a lawyer although in the absence of self-evident error the court has no general duty to articulate a question of law itself.
The Tribunal’s reasons
The protection claims advanced by the applicant, in summary, included claims that he was a long-time member of Jamat-e-Islami (JeI), a Bangladesh political party, and was subject to harassment, threats and extortion by members of a rival political party, the Awami League (AL). The applicant made a false claim in one of his entry interviews that he had been falsely accused of the murder of the leader of an armed or terrorist group and had gone into hiding. In his statutory declaration in support of his protection visa application he said that the claim was false and he had been advised to make it by other people in immigration detention because he feared deportation. He asserted that his other claims were true.
The claims maintained by the applicant included that he had been threatened with violence by members of the AL and had paid them large sums of money. He said his store had been looted by AL supporters. He claimed that his father, also a member of JeI, had been poisoned by his brother, the applicant’s uncle, who was a supporter of AL, and taken to hospital where he was ill-treated.
In the first Tribunal hearing the applicant claimed that his son had been abducted in October 2014 and his uncle had spread rumours that he had converted to Christianity in Australia which led to his brother being assaulted and his family home in rural Bangladesh being attacked.
The Tribunal found the applicant was not credible. It found that the applicant was ignorant of the process required to join JeI, was unaware of the party manifesto and knew nothing of its policies other than it was a religious party. It did not accept that the applicant, if a member of the party since 2004 as he claimed, would have such slight knowledge of these matters. It found that a “Character Certificate”, purportedly provided by the secretary of the party to attest to the applicant’s membership, was a fabricated document. The Tribunal pointed to spelling errors in the document which, along with other matters, indicated it was bogus.
The Tribunal also found inconsistencies in the claims made by the applicant over time. It noted that subsequent claims of the father’s involvement in JeI and claims of threats and extortion by members of AL, including the applicant’s uncle, were not raised at the time of the entry interviews. It found that the applicant’s claims about his uncle spreading rumours of his conversion to Christianity and the abduction of his son were first raised in the Tribunal hearing on 2 February 2015.
In written claims in June 2015 the applicant alleged for the first time that his brother had been beaten at the mosque as a result of the rumours of his conversion to Christianity spread by his uncle, that villagers had attacked his family home, kicked his son and as a result of the attack his younger brother had fled and a “cousin brother” had died.
At the hearing before the Tribunal in October 2015 the applicant made no mention of the attack on the family home. The Tribunal found this claim was fabricated.
The applicant also raised for the first time at the Tribunal hearing in October 2015 a claim that he was afraid to return to Bangladesh because his brother had been arrested and a “false case” made against him in March 2014.
The Tribunal also noted that in his entry interviews the applicant had referred to his father only as having memory problems and not remembering him but in his statutory declaration in support of his application had claimed that his father had been poisoned by AL members, including his uncle.
There were other inconsistencies in the applicant’s narrative noted by the Tribunal.
The Tribunal carefully assessed the applicant’s claims and found that they were fabricated or untrue. In my view this conclusion was open to the Tribunal.
The Tribunal also referred to the inadvertent publication of the personal details of the applicant and other immigration detainees on the Department’s website in 2014. The applicant claimed that this “data breach” meant he was at risk of persecution by members of the AL should he returned to Bangladesh. The Tribunal found that the applicant was of no interest to the AL and rejected the claim.
The Tribunal found that the applicant did not have a well-founded fear of persecution in Bangladesh for a Convention reason and was not eligible for complementary protection. I see no error in the Tribunal’s conclusion.
The section 438 certificate
The Minister, as a model litigant, brought to the attention of the court the existence of a section 438 certificate issued by the Minister’s delegate and communicated to the Tribunal. Section 438 of the Act provides as follows:
Tribunal's discretion in relation to disclosure of certain information etc.
(1)This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed;
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If theTribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
The certificate was dated “18/5/15” and was in the following terms:
I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 140 – 143 of file number [a reference number].
The disclosure of this information would be contrary to the public interest because:
(a) folios 140 – 143 contain information relating to an internal working document and business affairs.
The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438(3) and (4) of the Migration Act 1958.
I infer from fact that the certificate was addressed to the Registrar of the Tribunal that it was before the Tribunal and from the absence of any mention of the certificate in the Tribunal’s written decision and the absence of any order pursuant to section 440 of the Act that its existence was not disclosed to the applicant.
In MZAZF v Minister for Immigration [2016] FCA 1081, 243 FCR 1, at [37] Beach J held that section 438(1)(a) refers to public interest immunity. His Honour said that the basis of the claim for public interest immunity set out in the certificate in that case, that is, that the documents related to “internal working documents” has never been either a necessary or sufficient basis for public interest immunity whether at common law or under statute. In my view, the addition of the words “and business affairs” makes no difference. The Minister conceded the certificate was invalid. I am satisfied that concession is correct.
In MZAFZ Beach J found the invalid certificate gave rise to two grounds of jurisdictional error. First, he said that if the Tribunal acted on an invalid certificate it acted contrary to law and, in the absence of evidence to the contrary, he was entitled to assume the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents in its possession: at [40]. Secondly, he said there was an absence of procedural fairness in not disclosing the existence of the certificate to the applicant, not providing an opportunity to make submissions on its validity, not disclosing to what extent and how the information was to be taken into account and not giving an opportunity to seek a favourable exercise of the discretion under section 438(3)(b): at [50].
The Minister sought to distinguish MZAFZ, relying on the decisions in BEI15 v Minister for Immigration [2016] FCCA 2978 and BEG15 v Minister for Immigration [2016] FCCA 2778. He submitted that the documents that were the subject of the invalid certificate could not reasonably have been considered by the Tribunal to be relevant to the applicant’s claims. Accordingly, it said the Tribunal could not reasonably be considered to have “acted in some unspecified way on the invalid certificate” in the sense identified by Beach J in MZAFZ. In relation to the second ground of jurisdictional error it said that the documents covered by the invalid certificate could not reasonably have been considered by the Tribunal to be relevant to the applicant’s claims in a way that triggered an obligation to give the applicant notice of the certificate.
In support of these submissions the Minister sought to rely on an affidavit affirmed by Elizabeth Jane Gallagher of the Australian Government Solicitor’s office which annexed the documents that were the subject of the certificate (although not in a sealed envelope as recommended by the Court in Minister for Immigration and Border Protection v Singh at [67]).
In MZAZF and Minister for Immigration and Border Protection v Singh the courts did not examine the documents that were the subject of the invalid certificates. In MZAFZ Beach J declined the Minister’s invitation to examine the documents which, it was submitted, would show that the certificate was valid and that there was nothing advantageous to the applicant not disclosed and nothing disadvantageous disclosed. He said he was entitled to proceed on the basis that the documents covered by the certificate were relevant, otherwise the certificate would not been issued. He said it was the Tribunal’s task to review the documents, not his. Finally, he said that would not resolve the absence of procedural fairness in not disclosing the existence of the certificate to the applicant, not providing an opportunity to make submissions on its validity, not disclosing to what extent and how the information was to be taken into account and not giving an opportunity to seek a favourable exercise of the discretion under section 438(3)(b): at [55].
In Minister for Immigration and Border Protection v Singh the material that was the subject of the certificate was not before the primary judge. An affidavit attaching the material was filed but not read on the appeal. The Full Court noted that no submission was made to it that the material subject to the certificate was irrelevant to the issues under review: Singh at [16].
The decision of the Full Court of the Federal Court in Minister for Immigration v BJN16 [2017] FCAFC 197 was delivered after I reserved judgment. It establishes that those two cases are not authority for a proposition that documents that have been the subject of an invalid certificate should never be considered by a court reviewing a Tribunal decision.
The Full Court held that if the applicant has not been deprived of the possibility of a successful outcome by non-disclosure then relief would not be granted on discretionary grounds: at [66], [67] referring to Stead v SGIC (1986) 161 CLR 141 at 147 and Re RRT; Ex parte Aala (2000) 204 CLR 82 at 107 – 109, 122, 137, 156. If a party wishes to rely on material to establish that relief should be refused it should not be prevented from tendering material that supports such a submission: at [68].
Such a submission has been made in this case and I am satisfied that it is appropriate to consider the material.
Folio 140 is an e-mail dated 10 April 2015 from a legal officer in the Department instructing the Department’s private solicitors to consent to the quashing of the first Tribunal’s decision (and subject to client legal privilege were it not for waiver by its inclusion in an open affidavit). Folio 141 is an undated internal record naming the various departmental officers to whom responsibility for the file had been assigned at different times. Folio 142 is another undated internal document confirming that the first Tribunal’s decision had been quashed because of a probable error of law. Folio 143 is an internal departmental e-mail dated 5 May 2015 confirming that the decision of the first Tribunal had been set aside the previous day.
The information set out in the documents is mundane and innocuous. It merely records the recognition of the Department that there had been an error by the first Tribunal and a decision to consent to having its decision set aside. It was irrelevant to any issue to be considered by the second Tribunal. There is no rational basis for considering that it may have affected the Tribunal’s consideration of the applicant’s claims.
There is no basis to consider that the Tribunal may have acted in some unspecified way on the invalid certificate that constituted the first form of jurisdictional error in MZAFZ.
Secondly, there is no basis for considering that the failure to disclose the certificate to the applicant has disadvantaged him in any way or that the Tribunal could have reasonably considered that the information would be a reason or part of the reason for affirming the decision under review, requiring consideration of the obligation of notice under section 424A of the Act.
Accordingly, I am satisfied that the applicant has not been deprived of a possibility of a successful outcome by the non-disclosure and, accordingly, relief is refused on discretionary grounds.
Extension of time
Section 477 of the Act permits a court to extend time if it is “necessary in the interests of the administration of justice”. The application is 61 days late in circumstances where the applicant was in immigration detention at the time of the decision and, for a period, afterwards. He does not speak English and it was not challenged that he found it difficult (or impossible) to obtain legal advice. The Minister does not assert any prejudice. I am satisfied there should be an extension of time.
The application is dismissed and the applicant is ordered to pay the Minister’s costs in the sum of $7,328.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 14 February 2018
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