AHZ17 v Minister for Immigration
[2017] FCCA 1400
•23 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHZ17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1400 |
| Catchwords: MIGRATION – Protection visa – objection to the admissibility of affidavit filed by the Minister without leave – whether MZAFZ binding on the court – whether MZAFZ is distinguishable – MZAFZ applied. |
| Legislation: Migration Act 1958 (Cth), s.438 |
| Cases cited: MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 |
| Applicant: | AHZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 41 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 16 June 2017 |
| Date of Last Submission: | 16 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms. C. Symons |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Ms. J. Lucas |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue, quashing the decision of the Second Respondent dated 23 December 2016 (AAT case number 1610915).
A writ of mandamus issue directed to the Second Respondent requiring it to determine the application according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 41 of 2017
| AZH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
As the applicant is currently held in detention, I have endeavoured to deliver judgment as quickly as possible, hence this judgment is brief.
The applicant seeks judicial review of a decision of the second respondent confirming a decision of a delegate of the first respondent to refuse to grant the applicant a Temporary Protection (Class XD) visa.
The applicant is a citizen of Chad who resided in Saudi Arabia from birth before travelling to Australia by air, relying upon a fraudulent Saudi Arabian passport. The applicant later provided the delegate with his expired passport from Chad, which was relied upon by the delegate as evidence of the applicant’s identity.
The applicant claimed he would be harmed if he were to return to Chad as a result of concerns that he would be imputed to have political views as a result of his father having been a high-ranking member of a resistance movement in Chad, Unity for Democracy and Development (“the UFDD”) and; secondly, as a result of a tribal feud that had resulted in two of his relatives being killed and his family losing their land to the opposing tribe members.
The applicant explained that the tribal feud occurred around 1965 when his father was 16 years of age: a rival tribe aligned with the ruling family in Chad and took over his family’s farmland. The applicant said they killed his uncle and his father’s cousin and that after this his father fled to Sudan. The applicant believes that the tribe will come to know that he had returned to Chad and would be concerned that he may make a claim to his family’s land, any may kill him as a result.
Whilst the delegate accepted the applicant’s evidence with respect to the tribal feud and family land, the delegate concluded that as these events took place over 45 years ago when the applicant’s father was a teenager, and that no steps had been taken in the past 45 years to reclaim the family land, it was not plausible that he would be targeted by members of the other tribe.
The delegate also noted that the applicant had not raised a claim on the basis that he wished to reclaim the ancestral land or was intending to make a claim with respect to ancestral land.
The Tribunal also accepted that the applicant’s father may be a supporter of the UFDD but was not persuaded that he was a high-ranking member as claimed, and found the applicant’s evidence with respect to his father’s involvement with the UFDD vague and lacking in detail. In this respect findings as to his credibility were important.
The Tribunal did not accept that the applicant would be targeted for reasons of actual or imputed political opinion if he were to return to Chad, given his lack of any anti-government political profile and having regard to the limited extent of his family’s involvement with UFDD in the time that had passed.
The Tribunal also considered the difficulties that may face him as a result of a lack of social security and infrastructure in Chad and the fact that he had not previously lived in Chad.
Grounds One and Two
Grounds 1 and 2 of the applicant focus upon a certificate purporting to be issued under s.438 of the Migration Act 1958 certifying that the disclosure of certain information would be contrary to the public interest because “… it contains information relating to an internal working document and business affairs.”
The Tribunal failed to disclose the existence of the certificate, and the certificate is not in a valid form in any event (see MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1). As a result, the applicant says that the Tribunal did not proceed according to law (proceeding on the basis of an invalid certificate), and, further, that the result of the Tribunal’s process, based upon the invalid s.438 certificate and the failure to disclose the certificate to the applicant, resulted in the applicant not being accorded procedural fairness.
A failure to disclose the existence of such a certificate is a breach of the principles of procedural fairness as it meant that the applicant was unaware of the certificate, and therefore unable to make submissions with respect to the validity of the certificate, and potentially therefore denied the opportunity of knowing of the contents of the material purportedly covered by the certificate: see MZAFZ per Beach J.
The conclusions reached by Beach J in MZAFZ with respect to the core issues relating to the disclosure of the certificate were confirmed by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305. The High Court of Australia refused to grant special leave to the Minister in order to appeal the decision in Singh. The ratios of both MZAFZ and Singh are binding on this court.
As a result, it is clear that the process adopted in this case was contrary to law (failing to disclose the certificate to the applicant and receive submissions with respect to the validity of the certificate or the effect of it under s.438). As a result, the applicant is prima facie entitled to relief on judicial review.
The Minister seeks to tender a copy of the material referred to in the certificate in order to provide an evidentiary foundation for an argument that the material purportedly protected by the certificate would not have made any different to the outcome of the review.
The certificate in this case (which appears at court book p.101) simply states:
I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in file number ADD2016-XXXX27.
The disclosure of this information would be contrary to the public interest because it contains information relating to an internal working document and business affairs.
The Administrative Appeals Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438(3) and (4) of the Migration Act 1958.
It is accepted by counsel for the Minister that the terms of the certificate are not sufficient to engage s.438 of the Act (for the reasons discussed in MZAFZ), and therefore this case concerns an invalid certificate.
In MZAFZ Beach J explained the consequences which flow from an invalid certificate as follows:
39. Let me defer for the moment discussion of s 422B(2). The following consequences would seem to flow from an invalid certificate.
40. First, if the Tribunal acted on the invalid certificate it followed a procedure contrary to law. In the absence of evidence to the contrary, I am entitled to assume that the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents the subject thereof in its possession. So much can be implied from the Tribunal’s reasons at [19] (see my later discussion at [47] and [48]). Relatedly, the purported issue of an invalid certificate by the delegate of the Minister infected the process or procedure adopted by the Tribunal in relation to such documents.
41. Second and relatedly, in acting on the invalid certificate, it is open to infer that the Tribunal may not have properly turned its mind to whether it ought to have made disclosure under s 424AA or s 424A. I cannot confidently say that the Tribunal:
(a) properly read the documents the subject of the invalid certificate;
(b) determined that the documents did not contain information that would be a reason, or part of a reason, for affirming the decision under review; and
(c) then decided that no disclosure was required under s 424AA or s 424A.
42. But if the Tribunal had realised that the certificate was invalid, it would have had to have undertaken all such steps.
43. Third, if the Tribunal had realised that the certificate was invalid, it would have, in contrast to the conditions triggering s 424AA or s 424A, also had to consider (but apparently may not have) whether:
(a) the documents supported the applicant’s visa application;
(b) disclosure should be made to the applicant (assuming, for the moment, that s 422B was no bar to or excluded such a requirement), perhaps as part of ss 425 and 427(1)(c).
44. In my view, for the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted a jurisdictional error. And as so expressed, that category of jurisdictional error may not be impacted by s 422B(2).
When applying this reasoning to the facts in MZAFZ, Beach J said:
47. What does one know? The Tribunal in its reasons said at [19]:
I have before me the Department’s file relating to the applicants [sic]. I have also has [sic] had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This material includes:
· Application for protection visa;
· Copy of applicant’s passport;
· Interviews with delegate dated 14 November 2013 and 11 December 2013;
· Original family registration certificate;
· A number of articles about honour killings, blasphemy laws, punishment for illegal relationships and women’s rights.
48. As is apparent, the s 438(1)(a) certificate covered part of the Department’s file (the certificate referred to “file number CLF2013/87392”). Accordingly, the Tribunal had before it the documents covered by the certificate. Moreover, from the second sentence of [19], “I have also has [sic] had regard to ...” (my emphasis), one can infer in relation to the first sentence of [19] that the Tribunal had regard to the Department’s file including the documents covered by the certificate (see also s 430(1)(d)). But how it so had regard in relation to the documents covered by the certificate is opaque.
The approach taken by Beach J in MZAFZ was followed by Riley J in CQZ15 v Minister for Immigration & Anor [2016] FCCA 2788; (2016) 315 FLR 127. Riley J declined to consider further evidentiary material, setting out the contents of the documents purported to be covered by the certificate, relying upon the reasons of Beach J in MZAFZ where his Honour said:
54. Now the Minister submitted that I should look at the documents covered by the certificate, with the suggestion floated that once I looked at them I would be satisfied that:
(a) the certificate had properly been issued;
(b) there was nothing advantageous to the applicant not disclosed; and
(c) there was nothing disadvantageous to the applicant not disclosed.
55. I declined that invitation for a number of reasons. First, I am entitled to proceed on the basis that the documents covered by the certificate had relevance to the applicant’s visa application, whether favourable, unfavourable or neutral. If not, the s 438(1)(a) certificate would not have been necessary and the documents would not have been before the Tribunal. Second, it was the Tribunal’s task to review the documents, not mine. Third, even if I accepted points [54] (a) to (c), it does not address the points set out at [50] above in terms of what procedural fairness required that the Tribunal ought to have done, save for any operation of s 422B.
To the extent that the comments of the Tribunal in each case may have been slightly different, Riley J was prepared to infer that the departmental file was before the Tribunal: see paragraph [26].
In the applicant’s case, there is no doubt that part of the contents of the documents have been relied upon by the Tribunal, as the delegate’s decision footnoted a reference to the particular file (see paragraph [20] of the delegate’s decision at p.85 of the court book, FN’s 9 and 10). The file appears to have been evidence for the propositions that there was no alteration to the personal data in the passport from Chad and that the passport appeared to be legitimately manufactured.
Importantly, this present case turns in part upon issues of credibility, as the Tribunal set out at paragraphs [51] and [52] of the decision:
51. The Tribunal carefully considered all of the applicant’s claims, his documentary evidence, and the relevant country information, it did this while having regard to the relevant credibility assessment principles laid out by the Courts and summarised in Appendix A. Having done this, the Tribunal formed the view that while pars of his claim are credible, other aspects of his claims, as discussed in detail below, are not credible and have been fabricated or embellished for the purposed of his application for a permanent Australian visa. For example, it considers the applicant has embellished his claim as to the level of his father’s political activities in Chad, as discussed further below.
52. Further, and as discussed with the applicant at the hearing, the Tribunal considered the evidence that the Saudi Arabian government changed the migration rules in 2006, yet the applicant did not leave Saudi Arabia until 2015. The Tribunal considered the applicant’s explanation for his delay of some 9 years, however, it does not accept that he would have delayed his departure by such a long period of time if he held a genuine fear of serious harm at the prospect of being deported to Chad. The Tribunal considers his face undermines the credibility of the applicant’s claims.
Thus, this is a case where any evidence either supporting or undermining the applicant may well have been significant in the ultimate decision-making process when assessing the extent to which the applicant’s version of events was accepted as credible. It is in this context that the Minister seeks to tender the material, the subject of the purported certificate. Thereafter the Minister would have the Court review the whole of the matter, in light of the additional material, to mount an argument that when taken as a whole the material covered by the invalid certificate was of such limited relevance that it would not have had the potential to alter the outcome before the Tribunal.
The Minister does not accept that the process adopted by Beach J was appropriate, and rejects as authority the decision of Riley J. The Minister’s counsel seeks to distinguish the process adopted by Beach J with respect to further material on the basis that the Minister sought to tender the documents at the appeal level rather than at the trial level. Counsel also relies upon comments made by the Full Court in Singh. The Full Court in Singh said, at the end of the judgment, that:
67. First, the Minister initially sought to put before the Court the confidential information which was the subject of the certificate. For future cases, so that this material is not inadvertently seen by the Court prior to any debate as to whether it should be received, it should be provided manually in a sealed envelope with a clear statement on the front of it as to its contents. This will ensure that there is no premature disclosure of the material to the Court.
68. Secondly, no argument was advanced to us that the certificate was invalid. No doubt given the effect of a s 375A certificate, it is likely that a reasonably intense level of scrutiny will be applied to it. However, the fleshing out of those principles must await a case in which it is raised.
It was argued that these paragraphs indicate that the Full Court was of the view that the Minister would be able to tender the documents the subject of a certificate (or purported certificate) in future cases, though perhaps not in all cases given the process suggested by the Full Court.
In cases where the argument turns on whether or not the certificate is valid, and the Tribunal has disclosed the existence of the certificate the Court may have to view the documents. Importantly, this would not go to the question of whether or not relief generally should be granted or declined on a discretionary basis, but a question of law as to the validity of the particular certificate. This limited example demonstrated why the Full Court would decline to make any broad statement and suggest care be taken in placing documents before the court at least until the various consequential issues that flow from this category of cases are the subject of binding authority. It does not seem appropriate to attempt to read more than this into the comments of the Full Court in Singh.
The Minister also relies upon a decision of Smith J in SZMJM v Minister for Immigration & Anor [2016] FCCA 2884, an ex tempore judgment, where his Honour declined to follow MZAFZ and CQZ15. After some brief discussions questioning the reasoning of Beach J, his Honour said:
6. The third reason given by Beach J in MZAFZ concerns procedural fairness: see [50]. His Honour said there that procedural fairness required a number of things, including that the Tribunal at least give an applicant an opportunity to seek a favourable exercise in discretion under sub-s.438(3)(b). I cannot demur from that proposition. I am bound to apply it. However, the statement does not mean that annexure B is irrelevant and so inadmissible.
7. At [12] of her judgment, Judge Riley referred to this statement of Beach J at [40]; that the court is “entitled to assume that the Tribunal had acted in some unspecified way on the invalid certificate...”.
8. That might be so. However, whatever the entitlement of the court is, the question of whether the Tribunal did in fact act in some unspecified way must be determined on admissible evidence. It does nothing, in my view, to answer the question posed by s.55 of the Evidence Act 1995 (Cth) as to whether or not these documents actually have some probative force in respect of the issue of whether the Tribunal acted in that way.
9. Therefore, even though I might be entitled to assume that the Tribunal acted on it, I do not draw that inference for the purposes of the interlocutory decision of whether or not to admit the documents. Even if I did, I would have thought that if the documents went to establish that the Tribunal acted on it, they would have been probative of that fact, and therefore relevant within the meaning of s.55 of the Evidence Act.
10. I can see nothing in Beach J’s decision which binds me in a way to reject these documents. They were not the documents before Beach J. I have had regard to these documents for the purpose of determining their relevance (sees.58(1) of the Evidence Act) and I conclude that they relate directly to this applicant’s case. I find it highly improbable that they would have also been the documents considered by Beach J or indeed by Judge Riley. For those reasons I find that the documents are relevant and I admit them into evidence.
It appears to me that the core question is whether or not the desire of the Minister to argue that the documents would have made no difference to the outcome so broadens the issues before the Court that the contents of the documents become relevant and admissible.
There is no doubt that it is open to the Court to refuse to grant relief if the denial of procedural fairness would have had no effect on the outcome of the case: Stead v State Government Insurance Commission (1986) 161 CLR 141. This general proposition leads to some difficulties in application as appears in the cases concerning the need to determine whether to look at a “forward-looking test” or a “backward-looking test”, as identified by the Federal Court in Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151, with a forward-looking test applied in Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181.
The test relates to the possibility that a different outcome might have been reached: see, for example, Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 (per Gleeson CJ at p.89) and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (at p.339 per Kiefel, Bell and Keane JJ). However, the cases do not suggest that the applicant must demonstrate that the defect in process made a difference to the outcome. When one turns to the application of the principle, as Merkel J said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [60]:
… there is an inherent problem in assessing the importance of ... information ... without having the response the applicant would have given to it had he or she been apprised of the information and of its significance.
In Aronson et al, Judicial Review of Administrative Action and Government Liability 6th Edition (at p.486) the authors identify cases where relief has been denied as falling within two general categories. First, where “there is an incontrovertible fact or point which provides a discrete basis for the decision which cannot be affected by the procedural unfairness”, which does not apply in this case; and secondly, where the respondent satisfies the court that the result would “inevitably be the same” (relying upon Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 at p.519).
As the authors point out (p.487), the difficulty with the second category of cases is that “the task can easily descend into a form of merits review, in which the court essentially determines what it considers was the appropriate outcome”. (Referring to Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 51 at 54 and the High Court’s caution in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160 that “The relevant question is about the [decision-maker’s] processes not its actual decision.”) As the Federal Court pointed out in SZQGA v Minister for Immigration & Citizenship (2012) 204 FCR 557 at p.591:
To try to reconstruct a decision‑making process or to rework the apparent basis upon which a decision has been made, in order to state with any confidence what the result might have been or would have been but for denial of procedural fairness, is likely to be a speculative and unproductive task and certainly one likely to lead to injustice, because the judicial reviewer is not equipped and is not charged with responsibility to make the sort of administrative decision that the primary decision‑maker has been set up to determine.
In the present case, if the evidence that the Minister seeks to lead is admitted, the Court would then face the question as to whether or not the applicant would have led further evidence before the Tribunal and speculation as to the impact upon the decision-maker. This could quickly lead down a slippery slope towards merits review of the decision of the Tribunal, in a case where ultimately credibility was a significant factor in the original decision.
The question of whether or not the breach of procedural fairness can be said to have made any difference would ordinarily be based upon the evidence that would otherwise be before the court on the primary question. If further evidence is required then, as a general proposition, it would be better that the matter be remitted for the Tribunal to undertake the task it ought to have undertaken in the first place, as Beach J outlined.
However, the purpose of the discretion to refuse relief is to ensure that some degree of practicality also plays a role in decisions of this type, so that not every minor and inconsequential or technical defect results in the matter returning to the Tribunal to be determined afresh. Ultimately this is a question of degree upon which reasonable minds may differ, although relief would only be refused in the clearest of cases where the underlying issue is as significant as a protection visa.
In the context of this particular case, and the findings of the Tribunal, I am not persuaded that it is appropriate to permit the Minister to broaden the issues by leading the evidence sought to be led as there is a real likelihood that it would result in the Court being asked to make an overall assessment of the Tribunal’s decision, which in part was based upon findings of credibility having heard the applicant.
I also note that the authors of Judicial Review of Administrative Action and Government Liability (p.483) argue that the appearance of fairness (from the apprehended bias rule) is a proposition that has been drawn upon with respect to questions about the hearing rule, referring to SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at pp.216 and 219 (per Allsop CJ).
The authors of Judicial Review of Administrative Action and Government Liability express concern that this “leads to a tacit question akin to ‘would all of this appear fair to an outsider?’”, thus in the authors’ view “a fairly vague further question with the danger of unwittingly edging a court towards merits review”. This seems an unfair criticism as a breach of the procedural fairness rules is also a strong indicator of, at least, a reasonable apprehension of bias.
Such arguments inevitably lead to consideration of the central organising principles of administrative law. Where one turns to consider hearing processes not expressly regulated by parliament two significant underlying rationales immediately come to mind: the important role of procedural fairness in ensuring that decision-makers have the best information and arguments to enable the most rational decisions to be reached, and the important role of the administrative law principles in ensuring that decisions have sufficient subjective acceptability for those involved and the community generally having regard to the normative standards of the community in the particular jurisdiction. If one accepts the second underlying rational (more pithily expressed as justice must not only be done, but be seen to be done) then the discretion to refuse relief where there is procedural unfairness cannot be exercised upon a purely forensic assessment of the potential impact of additional evidence but must be undertaken in the context of the particular circumstances of a given case.
If such an analysis were undertaken in this case, it is evident that there are circumstances that undermine the fair appearance of the process generally:
a)the Minister’s officers have issued a certificate that was invalid;
b)the Minister’s officers have relied upon that certificate;
c)the Tribunal member told the applicant nothing of the certificate;
d)the Tribunal member did not disclose the documents themselves to the applicant;
e)when the matter is before this Court the Minister then says that there is no concern as to the confidentiality of the documents as the Minister now wishes to rely upon the documents to defeat the applicant’s claim; and
f)the applicant’s claim before the Tribunal was in part dismissed as a result of concerns by the Tribunal as to the applicant’s credibility.
If one steps back and looks at the matter as a whole, it appears to me that, in the context of this particular case, the process has become so problematic that it is another reason why it is more appropriate that the matter be remitted to the Tribunal to be heard afresh rather than this Court reviewing the documents, and considering further argument about how they may have impacted upon a Tribunal’s findings (including credibility findings with respect to the applicant). A fresh hearing ensures a fair process in which the applicant and community can have full confidence.
I therefore allow the application and make orders for the matter to be remitted to be reheard by the Tribunal according to law.
Ground Three
In ground 3 the applicant argues that the Tribunal failed to carry out its statutory task by failing to identify a “home region” for the applicant in Chad, and thus to assess the applicant’s protection claims by reference to the home region. I find no merit in this argument. The applicant’s case was based upon concerns with respect to the tribal group who dispossessed his ancestors of their land, and with respect to the government imputing a political opinion to him as a result of conduct of his father. The Tribunal rejected his concerns of fears with respect to the land issues generally. Having rejected this claim, it matters little where in Chad the applicant may reside as the Tribunal concluded he was not at risk from the opposing tribe.
With respect to the government, those concerns would operate throughout Chad and it would make no difference to his claim where in Chad he was residing.
The applicant seeks to develop this argument on the basis of an analogy with cases concerning the question of whether or not the applicant can relocate within their own country in order to avoid harm. In this case, the applicant did not receive a finding that he was at risk of harm for either of the two reasons that he articulated relating to persecution by the tribal group or the government. Nor was he able to articulate sufficient harm based upon his not having lived in Chad before. In the circumstances the applicant’s claim in this regard ought to be dismissed.
Costs
It is appropriate that costs follow the event in a determination such as this and orders will be as sought by the applicant and for the Minister pay the applicant’s costs in the sum of $7,206.00.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 23 June 2017
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