AGD21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 219
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AGD21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 219
File number(s): PEG 19 of 2021 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 22 March 2023 Catchwords: MIGRATION LAW – application for extension of time – decision of Administrative Appeals Tribunal – Protection (Class XA) (subclass 866) visa – where application was filed one day out of time – consideration of whether it is in the interests of the administration of justice to extend time – where delay was minimal, reasonable explanation for delay and no identified prejudice to the Minister – balanced against lack of merits to substantive ground of review – extension of time refused – additional consideration of whether section 438 certificates issued by Tribunal reveal jurisdictional error – model litigant obligation – application dismissed with costs. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 231
Migration Act 1958 (Cth), ss 424A, 438, 440, 477
Cases cited: BYE17 v Minister for Immigration and Border Protection [2019] FCA 441
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 2 December 2022 Date of hearing: 2 December 2022 Place: Perth Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms C Taggart Solicitor for the First Respondent: Minter Ellison ORDERS
PEG 19 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGD21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
22 march 2023
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time to file the application for judicial review under section 477(2) of the Migration Act 1958 (Cth) be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
The applicant in these proceedings seeks an extension of time in which to bring a judicial review application in respect of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) made on 22 December 2020. In that decision, the Tribunal affirmed a decision made by a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) not to grant the applicant a Protection (Class XA) (subclass 866) visa (‘protection visa’).
The applicant filed her application in this court on 28 January 2021, one day outside the 35-day timeframe provided under section 477(1) of the Migration Act 1958 (Cth) (‘the Act’). As a result, the applicant requires an extension of time pursuant to section 477(2) of the Act, which allows the court to grant such an extension where it is satisfied that it is necessary in the interests of the administration of justice to do so.
BACKGROUND
The applicant is a citizen of Zambia who came to Australia initially on 31 July 2009 on a student visa.[1] The applicant’s migration history is summarised at paragraph [28] of the Tribunal’s decision record as follows:
[1] See Court book at pages 28 and 38.
(a)the applicant was granted a student visa on 24 July 2009 with her then husband (Mr K) and daughter as dependent applicants;
(b)the applicant arrived in Australia on her student visa on 31 July 2009 without her husband and daughter;
(c)the applicant departed Australia on 28 June 2010 and returned on 9 July 2010. The applicant testified she travelled to the Philippines on missionary work during this trip;
(d)the applicant departed Australia on 9 July 2011 and returned on 30 June 2011. She claimed she travelled to Uganda on missionary work at this time;
(e)on 4 July 2012 the applicant’s student visa was cancelled as she failed to maintain enrolment in studies;
(f)the applicant lodged an application for a partner visa on 17 August 2012 claiming to be married to an Australian citizen (Mr F), and was granted a temporary partner visa on 3 July 2013;
(g)the applicant departed Australia on 1 March 2014, returning on 6 April 2014. She testified that she returned to Zambia at this time;
(h)on 4 July 2014, the applicant was invited by the Department to comment on information that she was still married overseas at the time she had married Mr F; she withdrew her partner visa application on 16 July 2014 stating that she and Mr F were no longer living together;
(i)the applicant applied for a student visa on 8 August 2014 with her daughter as a dependent applicant. The visa was refused as the applicant did not hold a substantive visa at the time of application; and
(j)the applicant lodged an application for a protection visa on 22 December 2014 and was issued an associated Bridging visa.
At the Tribunal hearing, the applicant confirmed that this was an accurate statement of her migration history.[2] As such, the applicant was in Australia without a valid visa from 16 July 2014 until 8 August 2014.
[2] Tribunal decision record dated 22 December 2020 at paragraph [30].
Application for protection visa on 22 December 2014
The applicant applied for the protection visa subject of these proceedings on 22 December 2014.[3]
[3] Court book at pages 17 to 71.
The applicant set out her claims for protection in her application for a protection visa.[4] In summary, she claimed to have left Zambia to escape an abusive relationship, that she did not receive support from her family and community and that in part, religious beliefs within her community contributed to her abuse and lack of support.
[4] Court book at pages 34 to 35.
The applicant gave some further examples of the abuse she suffered and stated that the State would not have supported her if she had chosen to leave the relationship. The applicant further stated that she left Zambia to be able to support herself independently, obtain an education and acquire skills and that she would face financial hardship if she were to return to Zambia.[5] The applicant clarified in her interviews with the delegate that she feared financial hardship rather than physical harm from her former husband if she were to return to Zambia.[6]
[5] Court book at pages 35 to 36.
[6] Court book at pages 161 and 164.
On 6 July 2016, a delegate of the Minister refused to grant the applicant a protection visa.[7]
[7] Court book at pages 153 to 156.
Application for review at Tribunal on 2 August 2016
On 2 August 2016, the applicant sought a review of the delegate’s decision at the Tribunal.[8]
[8] Court book at pages 173 to 178.
The applicant appeared before the Tribunal on three separate occasions,[9] before the Tribunal ultimately made its decision on 22 December 2020 affirming the delegate’s decision to refuse the applicant a protection visa.
[9] Court book at pages 237 to 239; 268 to 270; 415 to 417.
TRIBUNAL DECISION
The Tribunal’s decision record of 22 December 2022 is at pages 425 to 458 of the court book.
After setting out the relevant background at paragraphs [1] to [7], the Tribunal identifies the issue for determination at paragraph [8] when it said:
8.The issue in the review is whether the first applicant has a well-founded fear of persecution due to the breakdown of her marriage in Zambia, as a single or divorced women (sic) in Zambia, for breaching bigamy laws in Zambia or for any other reason, or whether complementary protection provisions otherwise apply.
At paragraphs [11] to [15], the Tribunal set out the criteria for the granting of a protection visa. At paragraphs [16] to [23], the Tribunal went on to set out the principles regarding how it ought to approach credibility concerns.
The Tribunal accepted that the applicant was a national of Zambia and that that is the country against which her protection claims are to be assessed.[10] As outlined above, at paragraphs [28] to [30], the Tribunal set out the applicant’s migration history.
[10] Tribunal decision record dated 22 December 2020 at paragraphs [26] to [27].
After setting out some further information provided by the applicant over the course of the hearings before the Tribunal, the Tribunal then set out the applicant’s protection claims at paragraphs [37] to [43] of its decision record.
The Tribunal then set out various other documents produced by the applicant in support of her claim, many of which were in the nature of character references and letters of support.[11]
[11] Tribunal decision record dated 22 December 2020 at paragraph [60] and following.
I do not propose to set out the Tribunal’s discussion of the evidence given by the applicant in detail, however, it is apparent from the Tribunal’s decision record that that the Tribunal member gave the applicant numerous opportunities to explain the harm that she thought she would face if she were to return to Zambia and how this might meet the statutory criteria for the granting of a protection visa. For example, at paragraphs [70] to [71], the Tribunal said:
70.… The Tribunal explained it was trying to understand how it was she said she met the criteria for protection which it had outlined earlier.
71.The Tribunal explained that it needed to understand her circumstances and the claims she was making for protection in order to decide if she met the criteria for the visa. The Tribunal determined that it should adjourn the hearing to a later date to allow the applicant an opportunity to consider what she wanted to say about her claims and to give her an opportunity on another occasion to explain her circumstances fully to the Tribunal.
72.Prior to the hearing adjourning the Tribunal put to the applicant adverse information pursuant to s.424AA of the Act. The Tribunal indicated that would not (sic) ask the applicant to respond to the information until the next hearing, so she would have an opportunity to consider her responses.
The adverse information is then set out in full at paragraph [73]. I do not propose to repeat it here, but in essence, it related to inconsistent information provided by the applicant about her marital status in her student visa application in 2009, on the one hand, and her partner visa application made in 2013 on the other. It was put to the applicant that giving false information in the past may reflect on her credibility in the present application, and may also impact on the Tribunal’s assessment of whether she met the criteria for a protection visa.
The applicant provided her responses to these matters at the third Tribunal hearing.[12]
[12] Tribunal decision record dated 22 December 2020 at paragraph [74].
Also prior to the third Tribunal hearing, the applicant provided further documents in which she expanded upon her concerns if she were to return to Zambia. This included email exchanges between the applicant and her former husband in Zambia.[13] When asked about what harm she feared on her return to Zambia, the applicant referred to these emails.[14] In relation to these emails, the Tribunal made the following observations at paragraph [82]:
82.… While the email exchanges are consistent with a relationship which is breaking down, the Tribunal was unable to find anything amounting to threats of harm against the applicant contained in the emails and at a general level they appeared consistent with the sort of private exchanges couples in marriage breakdown might reasonably be expected to engage in.
[13] Court book at page 299 and following.
[14] Tribunal decision record dated 22 December 2020 at paragraph [82].
After exploring in some detail with the applicant her concerns about the harm that might befall her if she were to return to Zambia, and after reviewing the various letters of support provided by the applicant, the Tribunal noted at paragraph [102] that:
102.… She is clearly a valued member of her church community and a valued friend. However, as the Tribunal notes for the applicant at the hearing, the Tribunal’s assessment of her claims for protection was not an assessment of the contribution she had made while in Australia through which the Tribunal acknowledged she had made a positive contribution.
At paragraphs [103] to [111], the Tribunal then considered the applicant’s delay in making her protection visa application against the background of her migration history. It put its concerns arising from this background and this delay to the applicant for her comment.[15]
[15] Tribunal decision record dated 22 December 2020 at paragraph [105] and following.
The Tribunal then considered country information which went to the issue of the applicant’s capacity to find employment and re-establish herself in Zambia.[16] The Tribunal also considered country information regarding risks to women in Zambia generally, including where they are the head of a household.[17]
[16] Tribunal decision record dated 22 December 2020 at paragraph [112] and following.
[17] Tribunal decision record dated 22 December 2020 at paragraph [117] and following.
At paragraph [120], the Tribunal noted the applicant’s submission that the economic situation in Zambia had worsened since the COVID-19 pandemic and therefore the country information before the Tribunal was not very reliable.
At paragraphs [121] to [124], in circumstances where the applicant’s marital status in Zambia at the time of her marriage in Australia was in issue, the Tribunal went on to consider the laws in place in Zambia in relation to bigamy.
Against this background, the Tribunal then set out its findings at paragraphs [125] to [137]. Relevantly, the Tribunal accepted that:
(a)it was plausible that the applicant had come to Australia with an intention of leaving her husband after relocating here;[18]
(b)the applicant’s marriage to her Zambian husband broke down over the period between 2010 and 2014;[19]
(c)the applicant married a man in Australia in 2012 and applied for and was granted a temporary partner visa on this basis;[20]
(d)the applicant’s relationship with her Australian husband broke down in late 2013/early 2014;[21]
(e)the applicant returned to Zambia in 2014 and filed for divorce from her Zambian husband;[22] and
(f)the applicant’s Zambian now ex-husband subsequently became aware of the applicant’s marriage in Australia and threatened to report her to the police in or about 2014 although he has not done so and has not repeated this threat.[23]
[18] Tribunal decision record dated 22 December 2020 at paragraph [125].
[19] Tribunal decision record dated 22 December 2020 at paragraph [125].
[20] Tribunal decision record dated 22 December 2020 at paragraph [125].
[21] Tribunal decision record dated 22 December 2020 at paragraph [125].
[22] Tribunal decision record dated 22 December 2020 at paragraph [125]
[23] Tribunal decision record dated 22 December 2020 at paragraph [125]
Notwithstanding these findings of fact, the Tribunal remained concerned about the applicant’s prior provision of false information or failure to provide updated information, in particular, in relation to the breakdown of her marriage in Australia and the impact of this on its assessment of her protection claims. At paragraph [127] the Tribunal said:
127.… The Tribunal finds that the applicant’s behaviour demonstrated a willingness to provide false information to achieve a particular visa outcome, which causes concerns regarding the applicant’s credibility as a witness in the context of visa proceedings generally and with respect to her protection claims in particular.
The Tribunal stated that its concerns about her credibility were further compounded by the delay of over five years before making a protection claim.[24] Relevantly, at paragraph [130], the Tribunal said:
130.… On the basis that the applicant unreasonably delayed seeking protection after arriving in Australia for more than five years, this delay further suggests that the applicant’s claims for protection lack credibility.
[24] Tribunal decision record dated 22 December 2020 at paragraphs [128] to [130].
The Tribunal also noted that the fear of harm claimed by the applicant altered significantly over time.[25] Relevantly, at paragraph [137], the Tribunal concluded:
137.Having regard to the evidence before it and the totality of the applicant’s actions since leaving Zambia, the Tribunal finds the applicant’s claims to fear harm from her ex-husband, his family or her family on return to Zambia not to be credible and does not accept them.
[25] Tribunal decision record dated 22 December 2020 at paragraphs [131] to [136].
The Tribunal then went on to assess the applicant’s claims against the refugee criteria in section 36(2)(a) of the Act. In particular, the Tribunal considered the applicant’s fear of harm:
(a)from her ex-husband, his family or her family;
(b)as a single, divorced woman in Zambia; and
(c)as a former bigamist.[26]
[26] Tribunal decision record dated 22 December 2020 at paragraph [140] and following.
The Tribunal concluded that the applicant did not meet the criteria for a protection visa in respect of any of these matters, either individually or cumulatively.[27]
[27] Tribunal decision record dated 22 December 2020 at paragraph [160].
The Tribunal then assessed the applicant’s claims against Australia’s complementary protection obligations and again concluded that the applicant did not face a risk of significant harm if she were to return to Zambia on any of these identified grounds.[28]
[28] Tribunal decision record dated 22 December 2020 at paragraph [161] and following.
The Tribunal also considered whether the applicant would face a risk of harm as a result of a lack of access in Zambia to the educational career opportunities that she would be able to access in Australia.[29] The Tribunal noted that there was no evidence that this amounted to a real risk of significant harm. But in any event, the Tribunal noted that there was no evidence that any such harm was directed to the applicant personally rather than the population generally.
[29] Tribunal decision record dated 22 December 2020 at paragraph [171].
In relation to the applicant’s status as a former bigamist, the Tribunal accepted that bigamy is an offence in Zambia.[30] The Tribunal also accepted country information which suggested that if the applicant were to be arrested on her return to Zambia, as a woman in custody, the applicant may be exposed to abuse which could constitute significant harm.[31] However, the Tribunal went on to say at paragraph [174]:
174.Having carefully considered all the circumstances of the applicant’s case, the Tribunal does not consider that there is a real risk she would suffer significant harm as a result of having breached bigamy laws in Zambia. In this regard the Tribunal notes that this was not a risk identified by the applicant as a risk of harm on her return until put to her by the Tribunal. …
[30] Tribunal decision record dated 22 December 2020 at paragraph [172].
[31] Tribunal decision record dated 22 December 2020 at paragraph [173].
Furthermore, after setting out its findings in relation to steps taken by the applicant’s former husband to report this situation to the authorities and country information about the extent to which there have been prosecutions in Zambia for bigamy, the Tribunal went on to say at paragraph [176]:
176.Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zambia, there is a real risk that the applicant will suffer significant harm for the purposes of s. 36(2)(aa) of the Act for breaching bigamy laws in Zambia.
Ultimately, having considered each of the applicant’s claims individually and cumulatively, the Tribunal concluded that there were no grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zambia, there is a real risk of significant harm for the purposes of section 36(2)(aa) of the Act.[32]
[32] Tribunal decision record dated 22 December 2020 at paragraph [178].
The Tribunal therefore affirmed the delegate’s decision to refuse the applicant a protection visa.[33]
[33] Tribunal decision record dated 22 December 2020 at paragraph [182].
PROCEEDINGS IN THIS COURT
As stated, the applicant filed her application for judicial review in this court on 28 January 2021. The applicant also relies upon an affidavit filed on the same date, in which she simply states that she is seeking a review of the Tribunal’s decision, that she is the applicant and annexes the Tribunal’s decision.
Notwithstanding orders made on 11 March 2021 permitting her to do so, the applicant did not file any amended initiating application giving particulars of the ground of review, nor did she file any written submissions upon which she wished to rely.
EXTENSION OF TIME APPLICATION
It is well settled that in determining whether it is in the interests of the administration of justice to extend time under section 477 of the Act, there are a range of factors to which the court can have regard, which include, commonly:
(a)the length of the delay;
(b)the explanation for the delay
(c)prejudice to the Minister if the extension were to be granted; and
(d)the merits of the substantive application.[34]
[34] SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]-[48].
Length and explanation for delay and prejudice to the Minister
In support of her application for an extension of time, the applicant raises the following ground:
The application form was dropped off within the 35 day’s (sic) but was dropped off at the Family Court. That was on 25th January ’21.[35]
[35] Originating Application filed on 28 January 2021.
At the hearing before me, the applicant confirmed that she brought her application to court but left it at the wrong court, leading to a delay of one day beyond the time limit.
As stated, in this case, the application was filed one day out of time. The Minister concedes that the delay is not significant and there would be no prejudice to the Minister if the extension were granted.[36] However, the Minister submits that neither of these factors is determinative.
[36] Minister’s Outline of Submissions filed on 5 October 2021 at paragraph [19].
The Minister also accepts the explanation offered by the applicant for the delay, namely that she delivered them to the Family Court of Western Australia on 25 January 2021 and that this was a genuine mistake.[37] However, the Minister submits that the substantive grounds of review have no reasonable prospects of success and therefore the request for an extension of time ought not be granted and the application for such extension ought be dismissed.[38]
[37] Minister’s Outline of Submissions filed on 5 October 2021 at paragraph [20].
[38] Minister’s Outline of Submissions filed on 5 October 2021 at paragraph [21].
Merits to the substantive grounds of review
In her initiating application, the applicant raises the following single ground of review:
The assessment was unfair because it did not consider how the world has changed due to Covid and other major happenings that have further affected my life and how I am able to move forward.[39]
[39] Originating Application filed on 28 January 2021.
For the following reasons, I find that that ground of review does not identify any jurisdictional error on the part of the Tribunal, nor is any error apparent on the face of the Tribunal’s decision record. As such, notwithstanding the short delay in filing and the reasonable explanation for that delay, I find that it is not in the interests of justice to grant the extension of time sought by the applicant.
At the hearing before me, the applicant appeared on her own behalf. After explaining the role of this court in a judicial review application, the applicant was invited to make submissions in support of her claim. In effect, she was invited to identify what error she believes that the Tribunal made in its consideration of her application.
The applicant said that the process of obtaining a visa has been a lengthy one, during which her life has been at a standstill. In addition, she says that COVID has affected not only her life in Australia, but also back in Zambia. The applicant says that this has been hard and further that she feels that if she is given an opportunity to study here, that would give her a platform from which to establish herself. The applicant said that she wished to have the opportunity to complete her studies.
The ground of review raised by the applicant does not identify any jurisdictional error on the part of the Tribunal. To the extent that the ground of review raised by the applicant suggests that the Tribunal failed to have regard to the risk of harm arising from the COVID-19 pandemic, this must be rejected. The Tribunal did consider the impact of COVID-19 on the applicant at paragraph [150] of its decision record where it said:
150.In relation to the economic effects of COVID-19 the Tribunal accepts that the pandemic has impacted the global economy. However, there was no evidence before the Tribunal of any economic impact COVID-19 may have had on Zambia having a discriminatory impact on single or divorced women, or that COVID-19 had impacted the capacity of Zambians generally to earn a livelihood. To the extent the claim is raised, the Tribunal does not accept the applicant faces a real chance of serious harm on the basis of the economic impacts of COVID-19.
To the extent that the applicant has referred to ‘other major happenings’ in her ground of review, the applicant has not identified either in her application or in her oral submissions to this court what ‘major happenings’ she is referring to.
But in any event, a fair reading of the Tribunal’s reasons leads to the conclusion that the Tribunal considered each of the matters raised by the applicant and considered whether these matters gave rise to a well-founded fear of persecution or a real risk of significant harm for the purposes of meeting the refugee criteria in section 36(2)(a) or the complementary protection criteria in section 36(2)(aa) of the Act.
Ultimately, the Tribunal invited the applicant to not one, but three, hearings. It put the applicant clearly on notice of the concerns it had about her claims for protection and gave her numerous opportunities to explain the basis of her protection claim. The Tribunal’s reasons are reasoned, comprehensive and logical and do not disclose any jurisdictional error.
In essence, the ground of review raised by the applicant invites the court to engage in impermissible merits review.
For each of these reasons, the ground of review raised by the applicant lacks merit.
CERTIFICATES
Although not identified as a ground of review, as a model litigant, the Minister has raised for the court’s consideration a possible additional basis upon which the applicant’s application could be based, namely:
(a)the way in which the Tribunal dealt with certificates issued under section 438; and
(b)whether the Tribunal complied with its obligations under section 424A.[40]
[40] Minister’s Outline of Submissions filed on 5 October 2021 at paragraph [28] and following.
In the Minister’s written submissions, the Minister also foreshadowed an application for an order pursuant to section 231 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) prohibiting the disclosure of a confidential exhibit.[41] Ultimately, the Minister did not press this application on the basis that the confidential exhibit was not required to be put before the court, and indeed, was not before the court.
[41] Minister’s Outline of Submissions filed on 5 October 2021 at paragraph [42].
In essence, it was submitted that the document at Annexure AS-1 of the affidavit of Andrew Shinnick affirmed on 1 October 2021 is the redacted version of the document contained within the confidential exhibit. The only aspects of AS-1 which have been redacted are details which identify the person who made the confidential disclosure. As such, it was submitted that the nature of the document which was the subject of the section 438 certificate is evident from AS-1 and it was therefore not necessary to seek orders for confidentiality as initially anticipated.
Section 438 of the Act relevantly provides:
(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 … that could form the basis for a claim … that the matter contained in the document, or the information, should not be disclosed; or
(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.
…
(3)If the Tribunal 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.
…
The material before the Tribunal included two non-disclosure certificates issued under section 438 of the Act:
(a)a certificate dated 6 July 2016 in relation to folios 132-133 of file CLF2015/31612 (‘First Certificate’);[42] and
(b)a certificate dated 12 August 2020 in relation to folio 133 of file CLF2014/143076 (‘Second Certificate’).[43]
[42] Court book at page 171.
[43] Court book at page 272.
At paragraph [44] of the Tribunal’s decision record, the Tribunal member states that the Tribunal formed the view that the First Certificate was not valid and wrote to the Department seeking that the certificate be reconsidered prior to the second hearing with the applicant. It then records that in response, by letter dated 12 August 2020, the Department purported to revoke the First Certificate although it identified a different file number.[44] The Tribunal was concerned about the validity of the revocation, but in any event, did not consider the certificate to be a valid certificate.
[44] Tribunal decision record dated 22 December 2020 at paragraph [45].
The Tribunal decision record goes on to note that at the second hearing, the Tribunal provided the applicant with the First Certificate and the letter of revocation and that the Tribunal explained its concerns about the validity of the certificate and that it proposed to release the documents covered by the First Certificate in any event.[45] The applicant indicated that she did not have any submissions to make in relation to these matters.
[45] Tribunal decision record dated 22 December 2020 at paragraph [46].
In any event, as stated, the Department issued the Second Certificate in relation to folio 133 of the file CLF2014/143076. That document, which is a ‘dob-in email’, is contained in Annexure AS-1 to the affidavit of Andrew Shinnick affirmed on 5 October 2021, and as stated, has been redacted to remove information which could identify the person who sent it.
The Tribunal decision record at paragraph [48] notes that the Tribunal was of the view that it would be appropriate to exercise its discretion under section 438(3)(b) of the Act and provide the applicant with a redacted version of the document. At paragraph [55] of the Tribunal’s decision record, the Tribunal records that it released a redacted version of folio 133 to the applicant. The Tribunal also made a consequential direction pursuant to section 440 of the Act.
As stated, the applicant herself raises no issue about the way in which the Tribunal dealt with the information covered by the First and Second Certificates. However, as a model litigant, the Minister addresses possible jurisdictional errors which might be said to arise.
In this case, as stated, the Tribunal formed the view that the First Certificate was invalid. The Minister takes no issue with the Tribunal’s findings in this regard.
It is possible that if an invalid certificate is issued and the Tribunal does not exercise its discretion to disclose the matters covered by that certificate it could, subject to issues of materiality, constitute a jurisdictional error.[46] However, in this case, the Tribunal itself determined that the First Certificate was invalid and in any event, provided the information covered by the First Certificate to the applicant for her consideration and comment (although redacted to remove personal information).[47]
[46] BYE17 v Minister for Immigration and Border Protection [2019] FCA 441 (‘BYE17’) at [94].
[47] See BYE17 at [94], including reference to the High Court’s reasoning in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
I also accept the Minister’s submission that when the Tribunal’s decision is read in its entirety, there is no basis for an inference to be drawn that the Tribunal put the information contained in the documents covered by either the First or Second Certificates to the applicant in a way which did not allow her to respond.[48] The Tribunal’s reasons make it clear that the information was, in fact, put to the applicant.[49] The redactions in the documents are minimal and allow the applicant to understand the information in the documents. This is not a case where the redactions made render the document incomprehensible.
[48] Minister’s Outline of Submissions filed on 5 October 2021 at paragraph [33].
[49] Tribunal decision record dated 22 December 2020 at paragraphs [50], [55], [57] and [58].
In addition, as well as providing the applicant with the relevant redacted documents, in each case, the Tribunal allowed the applicant time to consider the documents before being asked to respond. In the case of folio 133, the Tribunal adjourned the hearing to allow her to consider that document and respond at a third hearing.[50]
[50] Tribunal decision record dated 22 December 2020 at paragraph [56].
As noted by the plurality in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (Bell, Gageler and Keane JJ) at paragraphs [2] and [3]:
2.The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
3.The Full Court was also correct to take the view that an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome.
In this case, the documents which were the subject of both the First and the Second Certificates were put to the applicant in a form where the substance of the documents was clear and in a manner which allowed the applicant to comment on the information contained therein.
There is no arguable case of jurisdictional error arising in this case by reference to the way in which the Tribunal dealt with the section 438 certificates that were issued.
The Minister also acknowledges that the prohibition on disclosing information under section 438 does not absolve the Tribunal of its obligations under section 424A, which requires the Tribunal to put to an applicant any information that may form part of the reason to affirm the decision under review.[51]
[51] Minister’s Outline of Submissions filed on 5 October 2021 at paragraph [36].
Again, for the reasons discussed above, the content of the adverse information contained in the documents covered by the First and Second Certificates were appropriately put to the applicant and she was invited to respond.
As such, there has been no breach of the natural justice requirements.
For completeness, I note that paragraphs [42] to [44] of the Minister’s written submissions deal with the issue of an order under section 231. As stated above, the Minister did not press this application at the hearing before me and it is therefore not necessary to address this issue further in these reasons.
CONCLUSION
For each of these reasons, I find that the ground of review raised by the applicant does not have any prospects of success nor is any other error apparent on the face of the Tribunal’s decision record. I therefore refuse the application for an extension of time.
The respondent also seeks costs. As the applicant has failed in this application, costs should follow the event, and it is appropriate that costs be ordered in a sum to be fixed if not agreed.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 22 March 2023
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