AHH16 v Minister for Immigration
[2019] FCCA 2268
•20 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHH16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2268 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant a protection visa – whether Tribunal made a jurisdictional error in concluding the applicant faced no more than a remote risk of harm if returned to his country of nationality – whether the Tribunal’s failure to disclose to the applicant an invalid 438 certificate and the documents covered by that certificate was material to the Tribunal’s decision – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(2A), 438, 476 |
| Cases cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 |
| Applicant: | AHH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 288 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 9 August 2018 |
| Date of Last Submission: | 9 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams (by direct access) |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 288 of 2016
| AHH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Pakistan, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Two questions arise. The first is whether the Tribunal made a jurisdictional error by concluding the applicant faced no more than a remote chance he would be killed or seriously harmed if he returned to Pakistan. The second question or set of questions is whether the Tribunal made a jurisdictional error because the Tribunal did not disclose to the applicant a certificate that had been issued purportedly under s.438 of the Act, and, if it did make a jurisdictional error for that reason, whether the Tribunal’s decision should be set aside.
It would be convenient if I begin by setting out the applicant’s claims for protection.
Claims for protection
The applicant stated his claims for protection in a statutory declaration that accompanied his application for the Protection visa.[1] His claims are as follows:
[1] CB70-75
a)The applicant is a Shia Muslim and a Pashtun member of the Turi-Alizai tribe.
b)The applicant’s family are very well known in an area in Parachinar. The applicant’s grandfather is a senior elder of the village in which the applicant was born. The applicant’s family are wealthy landowners and own a large business.
c)In around April 2007 the Sunnis in Parachinar were celebrating Mawlood, but during the procession members of the Taliban began to make offensive chants directed at the Shias. In response the elders of the Shia community requested the political agents of the Kurram Agency to take action against the Taliban. The political agents refused the request.
d)Approximately five days later, in the course of the Shias celebrating the birth of Prophet Mohammad, they peacefully protested against the inaction of the political agents. During the protest the Taliban began shooting at the Shias. A war then started between the Shias and the Taliban.
e)After the outbreak of war the conditions in the Kurram Agency became unbearable. The Parachinar-Peshawar road was closed to the residents of the Kurram Agency. That meant that persons who needed to travel to Peshawar had to travel through Afghanistan.
f)Shortly after the war started the applicant joined the Imamia Student Organisation (ISO). That organisation was focused on student welfare, education, and the future education of Shias. The applicant joined because he wanted to have a positive impact on Shia youth, and also to promote religious education within his community.
g)Approximately 3 months after he joined the ISO, the applicant and three of his friends started a religious library in Parachinar. The library offered religious tuition, books, newspapers, and Shia religious development and education. In around October 2007 the Taliban burned down the library and left a warning letter demanding that the applicant and his friends stop their activities.
h)In November 2007, after the outbreak of a second war, the applicant and his friends opened another religious library, this time in the Punjabi Bazaar. The applicant and his friends were not active in promoting the library because they feared they would be targeted again. The applicant, however, continued his membership of the ISO, and he attended their workshops and assisted with organising their gatherings.
i)In around January 2011 the applicant travelled to Peshawar to obtain a passport. He travelled using the alternative route through Afghanistan. During his trip the applicant went to the Khay Bazaar to pick up groceries for his family. As he was leaving the bazaar the applicant was followed by four members of the Taliban. The applicant was familiar with these four men because they were originally from Parachinar. The applicant managed to escape and return to his hotel where he remained for two days until he gained his courage to leave and return to Parachinar, which he did with the aid of a government convoy.
j)In around September 2011 the applicant’s uncle, who was a senior nurse at a hospital at Parachinar, was transferred to a hospital in Alizai. Shortly after he began his duties there, the Taliban left a letter at the hospital for the applicant’s uncle demanding that he stop working for the hospital, and that he instead provide services to the Taliban. The letter also demanded money to support the Taliban’s cause. The letter threatened the applicant’s uncle and his family if the uncle did not comply with the demand. The applicant’s uncle transferred back to the hospital in Parachinar.
k)On a particular day in January 2012 the applicant and his close friend were in Parachinar. They separated at the Khar Bazaar. A suicide bomb exploded killing the applicant’s friend. The applicant and his family were deeply upset. The applicant’s family did not want the applicant to suffer the same fate, and it was decided the applicant should leave Pakistan due to the targeted killings of Shia Muslims all over Pakistan.
l)If the applicant were to return to Pakistan he fears he will be abused or killed by the Taliban and other anti-Shia organisations because he is a Shia Muslim; because he would be imputed with anti-Taliban political opinion; and because he is a member of a particular social group, namely, the Turi tribe. The applicant further claimed the Pakistan authorities would be unable to protect him because they allowed the Taliban to control the area, and they do not have the capacity to protect Shia Muslims.
The applicant’s legal representative made a number of submissions that relied on country information about the security situation in the Federally Administered Tribal Areas (FATA) and Parachinar. Relevant to ground 1 are the submissions the representative made in her letter dated 13 November 2015.[2] The representative reproduced a paragraph from the report issued by the Department of Foreign Affairs and Trade (DFAT) of April 2015 (DFAT Thematic Report) which stated that, overall, DFAT assessed there is a high risk of generalised violence in the FATA, that there was a moderate risk of sectarian violence in some areas; but that “the situation in the FATA remains volatile due to ongoing counterinsurgency operations by the Pakistani security services” (DFAT FATA finding).[3]
[2] CB250
[3] CB252
Tribunal’s reasons
The Tribunal accepted the applicant is a Shia Muslim and a member of the Turi tribe; that his family are wealthy landowners; and the applicant’s uncle was nurse at a hospital at Parachinar.[4] The Tribunal accepted the applicant was a member of the ISO from around May or June 2007 until around August 2008 when he started studying for his bachelor degree, but found the applicant’s involvement was only at a low level consisting of booking halls, and organising tables and chairs.[5]
[4] CB273, [40]
[5] CB273, [40]
The Tribunal did not accept the library the applicant and his three friends established in 2007 was a religious library, or that he and his friends offered religious tuition. The Tribunal found that the applicant and his friends provided extra tuition to school children. The Tribunal did not accept the Taliban burned the library.[6] The Tribunal accepted the applicant may have recognised people from Parachinar in a market in Peshawar, but it did not accept the persons the applicant saw were members of the Taliban, or that they followed him, or that they wanted to kidnap or otherwise target the applicant.[7] The Tribunal also did not accept that his uncle had been threatened by the Taliban,[8] finding that letters purportedly from the Taliban were not genuine.[9] The Tribunal did not accept that the applicant or his family or any of his friends were ever threatened by the Taliban;[10] or that there was a real chance the applicant will be persecuted because his father has a particular store, or because the applicant has worked in his father’s store, or because of the applicant’s relationship with his uncle who is a senior nurse in a hospital in Parachinar.[11] Nor did the Tribunal accept that there is a real chance the applicant will be discriminated against in employment for any one of the Convention reasons if he returns to Parachinar now or in the reasonably foreseeable future; or that there is a real chance the applicant will be prevented from practising his religion of a Shia Muslim.[12]
[6] CB273-274, [41], [42]
[7] CB272, [43]
[8] CB275, [45]
[9] CB275, [47]
[10] CB275, [47]
[11] CB275, [47]
[12] CB275, [48]
The Tribunal considered that the applicant’s situation, if he were to return to Parachinar, would be the same as that of other Shia Muslim members of the Turi tribe in Parachinar.[13] This led the Tribunal to consider whether the applicant would face a real chance of persecution because he is a Shia Muslim. The Tribunal referred to its having put to the applicant advice from the “DFAT Country Report – Pakistan, 14 April 2015” (being the DFAT Thematic Report) that the 2013 truce in the Kurram Agency was still in place as of November 2014; that the main road from Thal to Parachinar was open and was frequently used by civilian cars; and that Federal security forces maintained armed checkpoints on the road resulting in improved security in the Kurram Agency (DFAT Kurram Agency finding).[14] The Tribunal also referred to its having put to the applicant the conclusion of the UNCHR mission to Kurram in April 2014 that it was evident that general peace had been restored in both Upper and Lower Kurram,[15] to information contained in the Annual Security Report 2014 published by the FATA Research Centre including that Kurram Agency had remained comparatively quiet during 2014;[16] and also to the applicant’s evidence there were a lot of incidents that were not broadcast.[17]
[13] CB275, [48]
[14] CB275-276, [49]
[15] CB276, [49]
[16] CB276, [50]
[17] CB276, [51]
The Tribunal then made the following findings:[18]
I accept that . . . on 13 December 2015 at least 25 people were killed and over 70 injured in a bomb explosion in the Eid Gah clothes market in Parachinar. . . . I consider, however, that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce is not holding and all indications are that the security situation has been relatively stable with the exception of incidents like those referred to in the reports of the FATA Research Centre. I consider that in this context it is the terrorist attack in Parachinar on 13 December 2015 which must be viewed as anomalous and, while I accept that the Lashkar-e-Jhangvi reportedly threatened more attacks of a similar nature in [the] future, I consider that it would be premature to conclude that this attack – the first such attack in Parachinar for almost for two and a half years – marks a definite change in the security situation. . . . I consider that it would be mere speculation to find on the evidence before me that this terrorist attack means there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Turi tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before me concerning the security situation in Parachinar and in the Kurram Agency more generally, I consider that there is only a remote chance that [the applicant] will be killed or injured in such terrorist attacks if he returns to his home in Parachinar.
[18] CB276-277, [52]
Relevant to ground 1 is the Tribunal’s response to the applicant’s representative’s submissions based on the DFAT Thematic Report. The Tribunal referred to the representative’s submissions, and said that the passage from the report on which the representative relied referred “to the FATA as a whole which includes places like North Waziristan where, as referred to in paragraph 4.34 of the report, the Pakistani security services are conducting counterinsurgency operations against the TTP and other militants”; and that this “does not undercut the advice of the Department that there is an improved security situation in the Kurram Agency”.[19] DFAT’s “advice” to which the Tribunal here referred is the information from the DFAT Thematic Report that I have set out in paragraph 8 of these reasons.
[19] CB272-273, [37]
The Tribunal also considered whether the applicant had a well-founded fear of persecution because he has lived for some time in a western country, because he has sought asylum, and because he is a Pashtun member of the Turi tribe, but the Tribunal was not satisfied he had such a well-founded fear of persecution.[20] Finally, the Tribunal considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act but, relying on findings it already made in assessing whether the applicant satisfied the criterion provided for by s.36(2)(a) of the Act, the Tribunal concluded it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant will suffer harm as defined in s.36(2A) of the Act.[21]
[20] CB277-278, [53]-[55]
[21] CB278, [56]
Ground 1
The applicant relies on two grounds stated in the Amended application. Ground 1 is as follows:
The decision by the Tribunal was affected by jurisdictional error as the Tribunal either misapplied the relevant law, failed to give genuine, proper or realistic consideration to the claims of the applicant and the country information or there was an insufficient logical or evidentiary basis for the Tribunal to find at [52] of the decision record that “there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home in Parachinar.”
This ground is supported by particulars. Paragraph (a) of the particulars refers to the Tribunal’s accepting the applicant is a Shia Muslim, and a Pashtun member of the Turi tribe from Parachinar; and paragraph (b) summarises the applicant’s claims for protection, and submissions made on his behalf. In paragraph (c) of the particulars it is claimed the Tribunal failed to “take into account, relevantly or give genuine, proper or realistic consideration” to ten items of country information the paragraph identifies. Paragraph (d) refers to reports which is claimed records “more recent reports relating to sectarian violence in Pakistan and in particular attacks on Shia places of worship and religious leaders”. Paragraph (e) of the particulars refers to paragraph 37 of the Tribunal’s reasons where the Tribunal recorded the applicant’s representative’s submission based on the DFAT Thematic Report, and the Tribunal’s concluding that the matters on which the representative relied applied to FATA as a whole. Paragraph (e) claims the “Tribunal erred by” so concluding. Paragraph (f) refers to the Tribunal’s noting the terrorist incident of 13 December 2015, and the applicant’s representative’s submission that this most recent attack indicated the increasing tensions in Parachinar, and supported the applicant’s fear that current insecurity would lead to further sectarian violence. Paragraph (g) claims the Tribunal “erred” in making the findings contained in paragraph 52 of its reasons. Paragraph (h) of the particulars then concluded (emphasis in original):
The Tribunal ultimately erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question at [52], when finding that “there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home in Parachinar.
In his written submissions counsel for the applicant refers to a number of authorities, but otherwise repeats the matters contained in the particulars to ground 1. In his written submissions counsel for the Minister submits ground 1 simply argues with the Tribunal’s factual conclusion at paragraph 52 of its reasons that the “weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013”; but the Tribunal’s findings were reasonably open to it and discloses no jurisdictional error.
The language of the particulars to ground 1 and the applicant’s written submissions, and in particular, the claim that the Tribunal “erred”, strongly suggest that ground 1 expresses disagreement with the Tribunal’s findings. In other words, the language of the particulars and of the applicant’s written submissions suggest the applicant is seeking merits review of the Tribunal’s findings. This Court does not, of course, have jurisdiction to engage in any merits review.
At the hearing before me counsel for the applicant made submissions that went beyond the matters stated in the particulars to ground 1, and in his written submissions. Counsel drew my attention to the delegate having found the applicant faced a real chance of harm if he were to return to Parachinar, and submitted that, although the Tribunal was not bound by the delegate’s decision, the delegate’s decision on that point “is a consideration” “in terms of going to the sufficient logical or evidentiary basis”.[22] Counsel submitted that, given the DFAT FATA finding, it was not open to the Tribunal to find that the applicant faced only a remote risk of harm if he returned to his home in Parachinar. Counsel submitted the Tribunal confused two things: a decrease in the number of lives lost does not mean there is a decrease in risk; and the “amount of lives that were lost still remains unacceptable, and the risk remains moderate and high”.[23] Counsel also submitted that the Tribunal only addressed whether there was a change in the security situation rather than considering whether at any point in time the risk of harm constituted a serious risk.[24]
[22] T12.30
[23] T13.40
[24] T16.40
I do not accept any of these submissions.
(a)First, assuming that the delegate’s finding that the applicant would face a real risk of harm if he were to return to Parachinar is evidence of what a rational decision-maker would infer from the evidence that was before the Tribunal, it is incapable of constituting evidence that the delegate’s assessment is the only assessment a reasonable person could have made on the evidence that was before the delegate.
(b)Second, counsel for the applicant has not explained why it was not reasonably open to the Tribunal to find, as it did, that the DFAT FATA finding did not undermine the DFAT Kurram Agency finding. The two findings cover overlapping territories, with the territory that comprises FATA being a broader territory than the territory that covers the Kurram Agency.
(c)Third, the Tribunal did not manifest the confusion asserted by counsel for the applicant. Although it may be accepted that a reduction over a given period in the number of lives lost to violence does not by itself necessarily mean there is an improvement in overall security, that does not mean that a reduction in the number of lives lost due to violence over a given period is necessarily irrelevant. Further, to the extent that counsel for the applicant relies on the proposition that the “amount of lives that were lost still remains unacceptable, and the risk remains moderate and high”,[25] that is an appeal to the merits of the applicant’s claims for protection.
(d)Fourth, although it is true the country information on which the Tribunal relied referred to a change in the security situation over time, the Tribunal did not rely on, or at least only rely on, and consider the relative change in the risk of harm. What the Tribunal considered was the risk of harm as it existed, given the change in security it was satisfied the country information showed. That can be seen from the issue it considered which arose from the terrorist attack on 13 December 2013. It considered whether, given that attack, it should conclude that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real risk that any individual Shia Muslim member of the Turi tribe living in that area would be killed or injured. The Tribunal answered that question in the negative, concluding that there was only a remote chance that the applicant will be killed or injured in such terrorist attacks. That implies the Tribunal was of the view that the security situation in the Kurram Agency, as it had evolved over time, was one in which the applicant faced only a remote risk of harm if he were to return to his home in Parachinar.
[25] T13.40
For these reasons, ground 1 fails.
Ground 2
Ground 2 is as follows:
The decision by the Tribunal was affected by jurisdictional error on the grounds that:
(i)The “documents” purportedly subject to the principle of public interest immunity and the claim of non-disclosure pursuant to section 438 certificate were internal working documents and did not relate to a matter permitted under section 438(1) of the Migration Act 1958 (Cth), with the result that the certificate was invalid. For the Tribunal to proceed or act on an invalid certificate was not a process according to law and of itself constituted jurisdictional error;
(ii)If the Tribunal proceeded on the basis that the certificate under section 438 of the Migration Act 1958 (Cth) was valid, it is entirely unclear how the Tribunal considered the potential operation of s 438(3) or whether it considered s 438(3) at all. As such, there was a denial of procedural fairness and accordingly, jurisdictional error is established.
(iii)The non-disclosure of the relevant documents gave rise to a practical injustice, giving rise to reviewable error.
As a consequence, the non-disclosure of information under section 438(1)(a) of the Migration Act 1958 (Cth) was not in accordance with the principle of “substantial justice” pursuant to section 420 of the Migration Act 1958 (Cth), which impaired the ability of the applicant to present evidence and arguments pursuant to section 424AA or 425 of the Migration Act 1958 (Cth) and ultimately, resulted in the failure by the Tribunal to review the decision pursuant to section 414 of the Migration Act 1958 (Cth) and/or resulted in a constructive failure by the Tribunal to exercise jurisdiction and accord procedural fairness.
Ground 2 is directed to a certificate dated 27 May 2014 that was issued purportedly pursuant to s.438 of the Act (438 Certificate). The 438 Certificate notifies the Refugee Review Tribunal that s.438(1)(b) of the Act applies to the documents identified as folios 112-114, 148, and 150 of a particular file. The 438 Certificate states that the information contained in the folios should not be disclosed to the applicant because “it is information relating to an internal working document and business affairs”. The Minister accepts the 438 Certificate was not disclosed to the applicant, and that the certificate itself is invalid. The documents covered by the 438 Certificate are in evidence.
Ground 2 claims the Tribunal’s failure to disclose to the applicant the 438 Certificate constituted a denial by the Tribunal of procedural fairness to the applicant. The ground further claims, or at least appears to claim, that the documents were relevant to the applicant’s claims for protection. The Minister, on the other hand, claims the documents were irrelevant, and the Tribunal’s failure to disclose the 438 Certificate worked no practical injustice on the applicant.
Before I consider ground 2, it will be necessary to identify the principles that I should apply when considering the ground. These are to be found in the judgments of the High Court in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (SZMTA).[26]
[26] [2019] HCA 3
SZMTA
There are two reasons for judgment in SZMTA, one given by Bell, Gageler, and Keane JJ (plurality judgment), and the other given by Nettle and Gordon JJ (non-plurality judgment). All justices were of the opinion that the issue of a 438 certificate or purported 438 certificate to the Tribunal obliged the Tribunal to disclose to the applicant the 438 certificate.[27] There is a difference between the plurality judgment and the non-plurality judgment about the consequences of the Tribunal’s failure to disclose to the applicant the issue of a 438 certificate.
[27] [2019] HCA 3, [28], [115]
According to the plurality judgment, the Tribunal’s failure to disclose a 438 certificate may give rise to jurisdictional error. Whether or not it does so depends on whether “materiality is put in issue” and, where it has been put in issue, whether the applicant discharges the burden that lies on him or her to show that the Tribunal’s failure to disclose the 438 certificate was in fact material.[28] Here “materiality” in relation to the Tribunal’s failure to comply with its obligation to disclose the existence of a 438 certificate denotes the affirmative answer to the hypothetical question: could compliance realistically have resulted in a different decision?[29] The “question of materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof”.[30]
[28] [2019] HCA 3, [4]
[29] [2019] HCA 3, [45]
[30] [2019] HCA 3, [46]
According to the non-plurality judgment, a breach by the Tribunal of an obligation to disclose a 438 certificate gives rise to a jurisdictional error.[31] Unlike the plurality judgment, however, whether or not the breach is material is not relevant to whether the Tribunal made a jurisdictional error. In other words, materiality of error is not a criterion of jurisdictional error.[32] Materiality, however, may be relevant to whether the Court should refuse relief.
[31] [2019] HCA 3, [117]
[32] [2019] HCA 3, [92]
The question, therefore, is whether the Tribunal’s failure to disclose the 438 Certificate to the applicant, or the documents covered by the certificate, were material to the Tribunal’s decision. In practical terms, the answer to that question turns on whether any of the documents covered by the 438 Certificate could reasonably be considered to be relevant to the applicant’s claims.
The documents
It would be convenient to divide the documents into three categories. The first category (folios 112-114) are three pro forma documents titled “Confirmation of On Site Interpreting Request”. Folios 112 and 113 are the same document, and folio 114 is a different document. The documents confirm the engagement of an interpreter.
The second category (folio 148) consists of one document. It is an inter-Departmental email stating that the “following applicant is in receipt of Asylum Seeker Assistance”, further noting that the protection visa application was refused on 9 April 2014.
The third category (folio 150) consists of one document titled “PV Case Officer’s Checklist”. It is a pro forma checklist which contains a number of headings. Under each heading there are printed matters and next to each of these there is printed “Yes/No” or “Yes/No/NA”.
Material?
Paragraph (b) of the particulars to ground 2 refers to a number of matters in the folio 150 document. The particulars refer to the box titled “Effective Protection Checks Undertaken” being ticked and circled “NA”, and the entries “4002 checks”, “4001 onshore”, and “4001 offshore” all being ticked and circled “NA”. The particulars then refer to the claim made by the applicant’s representative that the government of Pakistan is unwilling or unable to protect members of religious minorities within the country. This part of the particulars, therefore, appears to assume some relevance between this part of the folio 150 document with the claim made by the applicant’s representative.
Paragraph (c) of the particulars to ground 2 refers to the box in the folio 150 document titled “Fraud Data Management PR Needed?” which is ticked and circled “No”. This paragraph of the particulars then refers to the claim made by the applicant’s representative that the government of Pakistan is unwilling or unable to protect members of religious minorities within the country; to the Tribunal’s having put to the applicant that it might not accept that the letters on which the applicant relied were genuine; and to the Tribunal having found that two of those letters were not genuine.
Finally, in paragraph (g) of the particulars, it is claimed that the folio 150 documents constituted information regarding the “Effective Protections Checks Undertaken”, and “Fraud Data Management PR Needed” by the Department “in regard to two core claims by the applicant”.
In his oral submissions, counsel for the applicant directed his submissions to the details inserted in the folio 150 document in relation to “Effective Protections Checks Undertaken”, and “Fraud Data Management PR Needed?”. As to the former entry, I understand counsel to have submitted that the “NA” response to whether “Effective Protections Checks Undertaken” in relation to the applicant was material because it raised the question whether the Department had undertaken any such check. As for the “Fraud Data Management PR Needed?”, I understand counsel to have submitted that had this been disclosed to the applicant, the applicant would have become aware that “there was an opportunity by the tribunal to conduct a fraud management inquiry in relation” to the documents on which the applicant relied and which the Tribunal found were not genuine.[33]
[33] T24.15
I do not accept counsel’s submissions. As to the “Effective Protections Checks Undertaken” entry, counsel’s submission assumes it is not known whether any such check was undertaken. The applicant has not issued a notice to produce to the Minister seeking the production of documents evidencing the carrying out of any such check. Thus, assuming the onus is on the applicant to establish materiality, there is nothing in the evidence before me that could support a finding that the failure by the Tribunal to disclose the 150 folio document could realistically have resulted in a different decision. Even if the onus rests on the Minister to prove that disclosure of the 150 folio document could not have made any difference, I am satisfied that such disclosure could not have made any difference; and the reason is the circling and insertion of the words “NA” signifies that no “Effective Protections Checks Undertaken” have been undertaken in relation to the applicant because, for whatever reason, the applicant was not a person in relation to which it was necessary to decide whether such a check should or should not be made. Thus, had the folio 150 document been disclosed, and the applicant had asked for a document evidencing the undertaking of an effective protection check, he would have been told that no such check had been undertaken in relation to him.
Counsel’s submission in relation to the “Fraud Data Management PR Needed?” assumes that this entry would have conveyed to a reasonable person in the position of the applicant or his representative, that the Tribunal had fraud detection procedures that, upon asking, the Tribunal would have made available to the applicant in relation to the documents on which the applicant relied but which the Tribunal found were not genuine. That assumption is not correct. The heading “Fraud Data Management PR Needed?” refers to a fraud detection procedure or set of procedures on which the Department, not the Tribunal, relied. In those circumstances, I am not satisfied that, had the Tribunal disclosed the folio 150 document to the applicant, he or his representative would have understood from it that the Tribunal had fraud detection procedures, or that if it did so, it would have been willing to make available for the applicant’s use to prove the authenticity of the documents on which he relied. On the contrary, I am satisfied that if the folio 150 document had been disclosed, neither the applicant nor his representative would have had any such understanding. Further, there is nothing on the evidence before me to suggest that had the applicant requested the Tribunal to undertake fraud detection procedures on the documents on which the applicant relied, the Tribunal would have agreed to that request. The likelihood is that the Tribunal would have refused, such request if for no other reason than it would have been aware of, and would have acted on the well-established principles that “it is for the applicant for a protection visa to establish the claims that are made”;[34] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, that the “Tribunal must then decide whether that claim is made out”;[35] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[36] and the Tribunal “is required to deal with the case raised by the material or evidence before it”.[37]
[34] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]
[35] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ)
[36] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [78] (Kirby J)
[37] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [58]; (Black CJ, French and Selway JJ)
Conclusion
I am not satisfied that, had the Tribunal disclosed the 438 Certificate or any of the documents covered by that certificate, that could realistically have resulted in a different decision. I am satisfied that even if the Tribunal had disclosed to the applicant the 438 Certificate, or all of the documents covered by that certificate, it would not have made any difference to the outcome of the review. In other words, I am satisfied that the Tribunal’s failure to disclose to the applicant the 438 Certificate or any of the documents covered by it did not operate to deprive the applicant of the possibility of a successful outcome.
Ground 2, therefore, also fails.
Conclusion and disposition
The applicant has not succeeded on the grounds on which he relies. I propose, therefore, to order that the application be dismissed. I will consider the question of costs when I pronounce my order dismissing the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 20 August 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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Appeal
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