AGY16 v Minister for Immigration
[2017] FCCA 1897
•31 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGY16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1897 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – where Applicants did not attend Tribunal hearing – certificate under s.438 of the Migration Act not disclosed to the Applicants – no practical injustice – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 426A, 438 |
| Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 |
| First Applicant: | AGY16 |
| Second Applicant: | AGZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 277 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 31 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2017 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the Respondents: | Mr Riley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 277 of 2016
| AGY16 |
First Applicant
| AGZ16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal dated 11 January 2016, affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas. The Applicants are citizens of the People’s Republic of China and father and son. The First Applicant arrived in Australia in 2011 and in March 2014 applied for a protection visa. Only the First Applicant (referred to for convenience as the Applicant) made claims to fear harm. The Second Applicant applied as a member of his father’s family unit. The Applicant’s claims were set out in a one-page document attached to the protection visa application.
The Applicant claimed, in essence, that his wife was subpoenaed for an interrogation in 2007 because she practised Falun Gong and was forced to join a brainwashing class and that his son was affected because of the family Falun Gong background by discrimination and trauma at school and in society. The Applicant claimed that he practised Falun Gong secretly in China and was not discovered. He claimed he joined group practice and activities promoting Falun Gong in Australia and was very active in telling the truth and sending out brochures initially, but that after that someone who came from the same city was sent back to China and his family was affected, the Applicant’s wife persuaded him not to participate in public activities.
He claimed his wife was called in again for interrogation by the police, that he was accused of joining Falun Gong in a foreign country and that his wife was asked to call him home to confess. His wife asked him not to return to China.
The Applicants were invited to an interview with the delegate, but did not attend. The delegate refused the application.
The Applicants sought review by the Tribunal. They did not provide any further information in support of their claims.
By letter dated 23 November 2015 the Tribunal invited the Applicants to attend a hearing on 18 December 2015. That letter was addressed to them at the postal address supplied in their applications for review. This was a post office box in South Hurstville which, I note, was also the address provided to the Department. It was used when they were notified of the departmental interview, the delegate’s refusal and subsequently of the Tribunal decision.
Neither Applicant attended the Tribunal hearing. There is no evidence before the Court of any explanation having been provided to the Tribunal by the Applicants or of any request for an adjournment.
As indicated, on 11 January 2016 the Tribunal affirmed the decision. In its reasons for decision the Tribunal commenced by recording that the Applicants had not appeared at the Tribunal hearing. It summarised their claims. It also referred to the fact that they had failed to attend the scheduled interview with the delegate. It stated that they had provided no further information.
The Tribunal found that the Applicants had provided copies of the bio data pages of their passports to the Department and found that they were nationals of the People’s Republic of China.
It recorded that the Applicants had been invited by registered post to attend a departmental interview, but that they had failed to do so or to explain their non-attendance and that the invitation had not been returned to the Department.
It had regard to the fact that the application for review did not contain any contact telephone number and nominated that correspondence should be sent to the post office box postal address provided. The Tribunal recorded that an acknowledgment that the application had been received was sent to that address and had not been returned undelivered. It set out the details contained in that letter (including the advice that the Applicants should notify the Tribunal of any change of address or contact details and that if the Tribunal did not receive a response to correspondence the case may be decided without further notice).
The Tribunal addressed the fact that on 23 November 2015 it wrote to the Applicants at the postal address provided, inviting them to appear at a Tribunal hearing. It set out, in summary form, the content of that letter, including recording that it stated that if the Applicants did not attend the hearing, the Tribunal may make a decision without taking further action to allow or enable them to do so or may dismiss the application without further consideration of the application or the information. The Tribunal recorded that there was no response to the hearing invitation letter and nothing to indicate that the information and the invitation letter were not received by the Applicant.
The Tribunal summarised that the Applicants had not appeared before the delegate; that no reason for non-appearance before the Tribunal was given; that there was no request for rescheduling; and that they did not appear on the date, time and place scheduled for the Tribunal hearing. It recorded that it had checked its records to confirm that the hearing invitation letter was sent to the correct address. In these circumstances, pursuant to s.426A of the Migration Act 1958 (Cth) (the Act), the Tribunal decided to make its decision on the review without taking any further action to enable the Applicants to appear before it.
The Tribunal considered the Applicant’s claims. It observed that it was not required to accept uncritically any and all claims of an applicant. The Tribunal found that on the evidence before it, it could not assess the Applicant’s credibility. It referred to BZADA v Minister for Immigration and Citizenship [2013] FCA 1062 at [21] in relation to the proposition that as the Applicants did not attend the hearing, the Tribunal was unable to reach the requisite level of satisfaction that they met the applicable criteria to grant the visa (see s.65 of the Act). It noted that it had only the information contained in the written material before it from which to make a determination, but stated that it had considered all the Applicant’s relevant claims.
The Tribunal was not satisfied on the evidence before it that the Applicant was a Falun Gong practitioner in China or Australia, so found that there was no chance of future risk on that basis. It was not satisfied that the Applicant’s wife was a Falun Gong practitioner in China; that she had been called in for interrogation by the police who were accusing the Applicant of joining Falun Gong in a foreign country; or that the police asked the Applicant’s wife to call him home to confess or he would be really sorry for his behaviour.
The Tribunal found that there was nothing to support these claims other than the Applicant’s unsubstantiated assertions and that there were insufficient particulars provided by the Applicant to enable it to be satisfied that the events referred to had occurred. It also had regard to the lack of documentary evidence.
The Tribunal concluded that there was insufficient evidence for it to be satisfied that the Applicant faced a real chance of persecution now or in the foreseeable future.
Similarly, the Tribunal was unable to be satisfied on the evidence before it that the Applicant met the complementary protection criterion. It referred to the fact it was not satisfied that he was a Falun Gong practitioner and that the police in China were aware of this and had regard to the absence of particulars or documentary evidence and lack of any detail from the son.
For the reasons given, the Tribunal was not satisfied that either of the Applicants was a person in respect of whom Australia had protection obligations and it therefore found that it followed they were also unable to satisfy the family member criterion.
The Tribunal affirmed the decision not to grant the Applicants protection visas.
The Applicants sought review by application filed in this court on 10 February 2016. In an attachment to the application, under the heading “Orders Sought By the Applicant” there are three purported grounds. Under the heading “Grounds of the Application” the Applicants set out claims about their circumstances in China.
The Applicants did not file written submissions. When given the opportunity today to make oral submissions, the Applicants had nothing to say.
The first paragraph under the heading “Orders Sought” expresses disagreement with the Department and Tribunal decisions on the basis that they did not consider that the Applicant’s safety would be threatened if he returned (to China). First, insofar as the Applicants seek review of the delegate’s decision, this court has no jurisdiction to undertake a review of such a primary decision (see s.476 of the Act). This ground seeks merits review in relation to the Tribunal decision. The Tribunal considered the Applicant’s claims to fear harm in China as set out in the statement accompanying the protection visa application but was not, for the reasons it gave, satisfied in that respect.
The same may be said in relation to “Order 2” (which is a complaint that the Tribunal did not consider that the Applicant will be “persecuted and in big trouble” if he returned home). Beyond this, neither of these grounds goes beyond seeking impermissible merits review.
Order 3 appears on its face to take issue with questioning of the Applicant at a departmental interview in a manner which made him feel upset. This is wrong in fact. The Applicant did not attend either the departmental interview or the Tribunal hearing. I confirmed this with the Applicants today. The Applicant suggested that he meant to say that he was asked questions when he went to lodge his documents. Whether or not that is so, it does not establish jurisdictional error on the part of the Tribunal.
The “grounds” of the application are as follows:
1. I am a Chinese citizen and Falun Gong practice [sic], who has been persecuted by Chinese Government. I had been arrested by the corrupted government and police.
2. I am feared to return back to China and I do not want to be sentenced.
3. The Chinese Government still looks for me if I return. My friends told me not to go back since the police are still looking for me.
These grounds, which I note in some respects depart from the claims in the Applicant’s protection visa application, seek impermissible merits review and do not establish jurisdictional error.
No jurisdictional error is established on any of the bases raised in the application.
The Minister raised two issues in written submissions: first, the Tribunal’s exercise of its discretion under s.426A of the Act, and, secondly, the relevance of the fact that a certificate was issued pursuant to s.438 of the Act.
As the First Respondent submitted, in the circumstances of this case the Tribunal’s exercise of its discretion under s.426A of the Act has not been shown to be unreasonable (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183) and reveals no error. As the Tribunal noted when considering whether to exercise that discretion, the Applicants had submitted no evidence or submissions beyond their initial claims. Their non-appearance before the Tribunal was not out of character (see AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144; [2015] FCA 1383 at [24], and Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [55]). Further the Applicants had not provided a phone number or email address to facilitate contact (cf AZAFB at [26]-[28]). There was no evidence that either Applicant had made any attempt to contact the Tribunal regarding non-attendance at the hearing. Moreover in the protection visa application the Applicants had provided the same postal address that they had provided to the Tribunal. Letters were not returned undelivered to the Department or Tribunal. In particular there was nothing to indicate they did not receive the information in the hearing invitation letter.
In all the circumstances of this case, the Tribunal’s decision to proceed under s.426A of the Act was not unreasonable.
The other matter raised by the Minister is the fact that there was a certificate issued under s.438 of the Act. In this case, the certificate and the documents to which it referred are in the Courtbook, and so are in evidence. That distinguishes this case on a factual basis from MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081 and Singh, which I note also concerned a certificate under the differently worded s.375A of the Act.
Section 438 of the Act is 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; 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.
(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 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.
(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.
In these circumstances it is necessary to consider whether the Tribunal fell into jurisdictional error by virtue of the fact that there was no disclosure of the certificate or the notification or of any information in the documents to the Applicants. There is no evidence that the Applicants were informed in any way about the certificate or the documents the subject of the certificate. This raised an issue as to whether the Applicants were denied procedural fairness and/or the Tribunal followed a procedure contrary to law as considered in MZAFZ.
In written submissions the First Respondent described the certificate as a purported certificate under s.438(1)(a) of the Act and a notification under s.438(1)(b). In oral submissions it was suggested that the certificate was valid on the basis that, while there was an initial reference to s.438(1)(a) and claim that disclosure was contrary to the public interest merely because the documents included internal working documents (cf the discussion in MZAFZ at [35]-[38] and BEG15 v Minister for Immigration and Border Protection (2016) 315 FLR 196; [2016] FCCA 2778 at [42]), the certificate went on to state that s.438(1)(b) also applied to the information because it was given in confidence. It was submitted that, whether or not the certificate was valid, there was no denial of procedural fairness
In this case, as in BEG15, the documents the subject of the certificate are in evidence. They are of relevance at least to the question of whether the Applicants lost any opportunity by reason of the Tribunal’s failure to notify them of the existence of the certificate and also to the question of whether, if there was a technical error, relief ought to be refused in the exercise of the Court’s discretion. The documents the subject of the certificate related to identity resolution and set out limits on use and disclosure of such information. However they are of no apparent adverse relevance to the Tribunal’s reasons for decision, given that they do not raise any doubt in that respect and the Tribunal accepted that the Applicants were nationals of the People’s Republic of China (cf MZAFZ at [47]-[48] and BEG15 at [44]).
In the circumstances of this case, it can be inferred that there was nothing in the material the subject of the certificate that was considered adverse by the Tribunal to the decision to be made such as to indicate that the Applicants were denied any opportunity that might have affected the outcome of the review, and, in particular, nothing adverse to the Applicants such as to give rise to an obligation on the Tribunal to consider whether it ought to have made disclosure under s.424A or s.424AA of the Act or whether disclosure should be made under s.425 of the Act (cf MZAFZ at [40]-[43]).
Further, in the circumstances of this case, there was no lack of procedural fairness in the Tribunal not disclosing this certificate or notification to these Applicants or the documents or information therein in circumstances where they failed to attend the hearing. Neither the certificate or notification could possibly have had the effect of circumscribing their participation in the hearing. The Tribunal had no opportunity at the hearing to inform the Applicants of the existence of the certificate or notification.
There is no basis on the facts of this case, and having regard to the authorities, to suggest that as a matter of procedural fairness the Tribunal ought to have delayed its decision in order to write to the Applicants in relation to the certificate or that it followed a procedure contrary to law in acting on information in the documents that was positive to the Applicants (see CKG15 v Minister for Immigration and Border Protection [2017] FCCA 938 at [103]).
Even if the certificate complied with s.438 of the Act (insofar as it relied on the confidentiality ground), having regard to the circumstances of this case where the documents the subject of the certificate did not raise any doubt about the identity of the Applicants but if anything, were positive in that respect, the Tribunal’s decision is not such as to suggest that there was any denial of procedural fairness in the Tribunal’s failure to disclose the existence of the certificate to the Applicants (see MZAFZ at [50]).
I note that in MZAFZ, the relevant information was not before the Court but Beach J took into account the possibility that the information could be neutral or positive in concluding that an opportunity was denied to the Applicant in terms of procedural fairness (and see BEG15 at [67]).
If, despite the nature of the documents and the absence of any denial of procedural fairness, there was a technical jurisdictional error in the Tribunal’s failure to disclose the fact of the certificate to the Applicants (see MZAFZ at [65]), I would refuse relief in the exercise of my discretion (see BEG15 at [67] and AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [91]). Knowledge of the existence of the certificate could not have made or make any difference to the outcome of the review (on either a backward or forward looking view of the exercise of the discretion), in the sense discussed by Judge Smith in BEG15 at [68]. As Barker J stated in AVO15 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. See Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40, especially at [57] (Gageler and Gordon JJ).
The same may be said in this case. Whether or not the certificate was valid, no practical injustice is apparent. There would be no utility in granting the relief sought in these circumstances.
Accordingly, the application should be dismissed.
The Applicants have been unsuccessful. They should meet the costs of the First Respondent. In the circumstances of this case the scale amount is appropriate.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 10 August 2017
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