AIO17 v Minister for Immigration
[2018] FCCA 3764
•20 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIO17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3764 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of Tribunal decision – visa application placed in abeyance pending conduct of criminal trial against applicant’s migration agent – applicant was to be prosecution witness but was subsequently not required – applicant admitted initial claims for protection were false and had been written by his migration agent – declaration by applicant as to the truth and correctness of the matters stated in his visa protection application – delegate refused visa application – whether Tribunal made an error of law – whether Tribunal failed to consider evidence – whether adverse credibility findings amount to jurisdictional error – invalid s 437 Certificate issued – applicant not informed of Certificate, the documents to which it related or the information which they contained – no denial or procedural fairness and no practical injustice occasioned – no issue of fraud – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 414, 415, 420, 422B, 425,424A, 424AA, 425A, 437, 438, 474, 476, 499 |
| Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 AMF15v Minister for Immigration and Border Protection (2016) 241 FCR 30 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 BRF038 v The Republic of Nauru [2017] HCA 44 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 CDY15 v Minister for Immigration and Border Protection [2018] FCA 175 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 |
| Applicant: | AIO17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 163 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 12 December 2018 |
| Date of Last Submission: | 12 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr McDermott |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
The title of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.
The application filed on 25 January 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 163 of 2017
| AIO17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 25 January 2017, the applicant seeks judicial review of a decision of the second respondent (the Tribunal) dated 30 December 2016 affirming a decision of a delegate of the first respondent (the Minister) not to grant the applicant a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).
The determination of the application has taken some many years. This has occurred in part because the applicant was to have been a prosecution witness in a trial against his former migration agent who had been charged with offences involving fraudulent conduct in relation to the preparation of ~900 visa applications. As a consequence, the Department made a decision to place a ‘decision bar’ on the Protection visa application until the prosecution of the agent had been completed.
For the reasons that follow, I have concluded that the application must be dismissed. I am not satisfied that the Tribunal committed any error of law in its application of the criterion for a Protection visa to the facts of the case. Nor am I satisfied that the Tribunal failed to properly consider the evidence or adopted an erroneous approach to its consideration of the applicant’s credibility. Further, although the Secretary had issued a certificate under s 437 of the Act (Certificate) which was invalid, the applicant was not denied procedural fairness and there was no practical injustice occasioned to the applicant on account of his not being informed of that Certificate, the documents to which it related or the information which they contained.
Background
The applicant, a Malaysian citizen aged 29, years first arrived in Australia on a Visitor visa on 13 September 2010.
On 17 November 2010, the applicant applied for a Protection visa and made the following claims for protection (initial claims):
a)the applicant claimed that he had left Malaysia to escape harm from gangsters after they demanded protection money from his father;
b)when his father refused to so pay, the gangsters vandalised his father’s travel agency, and his father was later attacked;
c)Malaysian Police took no appropriate responsive action and the gangsters then threatened to harm the applicant directly, which in turn caused his father to arrange for his travel to Australia.
As emerged from the delegate’s decision, the applicant’s father had taken a series of steps to try and assist his son in making the transition from adolescence and school to adulthood and employment.
The applicant was assisted in the completion of his application by his former migration agent, one Tommy Lai. As events occurred, criminal charges were brought against Mr Lai for his involvement in the facilitation of a large scale Protection visa fraud.
The Department made a decision to place the present application in abeyance pending the conduct of the criminal trial against Lai by reason that the applicant was required as a prosecution witness for that trial.
By September 2015, the applicant was no longer required as a prosecution witness.
At a Departmental interview held on 21 October 2015, the applicant confirmed that his initial claims for protection were false and said that they had been written by his then agent, Tommy Lai. In making that admission the applicant made a series of new overlapping claims:
a)the applicant now said that he had been involved with gangsters while at school and that he had been expelled because of this. When describing his involvement, the applicant claimed that he had collected protection money but ‘never bashed anybody’;
b)upon learning of the applicant’s involvement with gangsters, his father sent him to train as a mechanic. When the gangsters learned of this development, they demanded payment by him of ~ AUD $3,400 before he could leave the gang. He said that there were 6 to 7 members of the gang affiliated to a national gangster network;
c)when the applicant refused to pay the gangsters the money, they threatened his father and called his mother;
d)the applicant did not seek police assistance because of corruption, and he tried relocating to Kuala Lumpur and Singapore for one or two weeks, but said that the gangsters would find him because of their network. The applicant also claimed the gangsters knew he was in Australia, and were waiting for him to return to Malaysia.
Following that interview, the applicant produced a letter dated 26 October 2015 which was said to be from his former employer and stated that he had been dismissed (notwithstanding his apparent skills and interest in his job), by reason that there had been “constant disturbances and chaos caused by his former gang member [and that] he had become a liability to the management.” The letter also stated:
Also the constant presence of people with suspicious characters kept the customers away. As a result, we had to terminate his services with a heavy heart, fearing for the customer safety. We wish him well in his future undertakings.
On 6 November 2015, a delegate of the Minister refused to grant the applicant a Protection visa. In the decisional record, the delegate concluded that so little detail had been provided in the applicant’s application that the applicant’s fear of harm was not well-founded. Further, the delegate considered that the making of the initial claims by a ‘known perpetrator of large scale visa fraud’ severely undermined the legitimacy of the applicant’s claims. The delegate attached little weight to the letter dated 26 October 2015 apparently from his Malaysian employer, noting that it had been given after the Departmental interview and some five years after the lodging of the Protection visa application. The delegate also concluded that even if the applicant had once been a gang member, he could relocate within Malaysia or Singapore.
The delegate concluded as follows:
Having considered the [applicant’s] Australian immigration history, lack of detail in his claims and the lack of any credible supporting evidence substantiating his claims, it is far more probable, in my view, that the [applicant] applied for a Protection [Visa] in order to prolong his stay in Australia, rather than for the reason of possessing a well-founded fear of returning to Malaysia. There are serious deficiencies in his claims which lead me to reach a state of disbelief in relation to his overall case. I therefore do not accept his claims as genuine or credible.
On 6 November 2015, a delegate of the Minister issued the Certificate notifying the Tribunal that the information contained in folios of 49-52 of the Departmental file was subject to s 438 of the Act which was stated to apply to both the documents and information contained in those folios. The Certificate stated that the Tribunal’s use and disclosure of the subject information was subject to sub-s 438(3)-(4) of the Act. Why the delegate issued that Certificate on this date was not raised or explained.
On 19 November 2015, the applicant applied to the Tribunal for review of the delegate’s decision. By email sent on 20 November 2015, the Tribunal advised the applicant that his application was invalid and that if he sought a merits review of the delegate’s decision, he would need to lodge a valid application. He did so.
On 27 November 2015, the applicant again applied to the Tribunal for review of the delegate’s decision. Attached to that review application was a copy of the delegate’s decision.
Notwithstanding the sequence of events referred to at [14]-[15] above, on 15 November 2016, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments in relation to the issues arising on the decision under review. He responded to that invitation indicating that he would appear without the assistance of an interpreter or other representative.
On 13 December 2016, the applicant appeared at a hearing before the Tribunal. At the hearing, he submitted a copy of highly graphic photographs of a person who appeared to be of Indian ethnicity and whom he claimed was his best friend. The applicant claimed that he had witnessed him being severely beaten after having behaved in a vulgar or insulting manner towards the gang of which the applicant and his friend had been members. The undated photos depicted the person’s injuries including extensive recent wounds and scarring to his back and head with significant blood loss from his head. Another photo indicated the person had been placed on a hospital bed and apparently sedated.
Tribunal decision
On 30 December 2016, the Tribunal made a decision to affirm the delegate’s decision to refuse the visa application. The Tribunal provided a statement of its decision and reasons for that decision (Reasons).
The Tribunal set out in an orthodox manner the background to the application [1]-[4], the legal principles that were applicable to a claim to a Protection visa on the ground that a person was a refugee [5]-[15], and on the ground that the person may be owed complementary protection: [16]-[18]. The Tribunal also recognised the obligation to take account of relevant guidelines issued pursuant to s 499: [19].
The Tribunal set out its understanding of both the initial claims and the new claims: [21]-[30]. The Tribunal noted that the applicant had claimed that his parents had regularly visited him in Australia, and that he was continuing to study automotive mechanics in Australia: [29].
The Tribunal recorded the applicant’s evidence at the hearing concerning the new claims, as well as specific country information about the gang the applicant claimed to have been affiliated with (Gang 36) [33]-[36]. The Tribunal traced at [33] in some detail that, upon discovering the applicant had not been attending classes, his father had removed him from school. It noted that the applicant had claimed to have become a high school bully who extorted money from other children and that he continued to act as an extortionist for Gang 36 after leaving school. The Tribunal noted that the applicant’s father had then arranged for his son to be given an apprenticeship at a mechanic’s business and that the applicant claimed his gang had then sought to extract a payment of ~AUD$3,400 as the price for permitting the applicant to leave the gang. It recorded that the applicant claimed the gang comprised a crew of 8-9 persons and was part of a much wider network.
The Tribunal recounted the applicant’s claims to having witnessed the violent assault on the Indian who had been vulgar or insulting towards the gang as detailed at [17] above. The Tribunal had regard to country information in relation to Gang 36 including that a report in September 2013 had stated the police had launched an Operation, Cantas Khas, following a spate of gangland shootings and in which the police (or rival gangs, or perhaps both), had shot dead the leader of Gang 36 and others.
The Tribunal set out the limited aspects of the applicant’s claims that it found to be credible and which largely concerned uncontroversial matters such as his ethnicity, family composition, and education level: [45]. The Tribunal also accepted that the applicant’s initial claims were false and had been contrived by his former migration agent and based this finding upon the applicant’s admission: [46].
The Tribunal then identified a number of considerable credibility concerns that it had about the applicant’s oral testimony and which were characterised as being ‘limited and vague’: [47]. Those concerns were identified at [48]-[50] and are considered in Ground 3 below.
At [51], the Tribunal concluded:
It is the Tribunal’s assessment that the [applicant] lacks overall credibility as a witness. This is a matter of central importance in the Tribunal’s determination of this review application for protection. In this case the [applicant] has provided very limited and vague claims to replace [the initial claims] he has admitted and the Tribunal accepts as false and contrived. The Tribunal has made a number of findings regarding details of those new claims to have been inconsistent and unpersuasive and undermined by the available country information. It is this context that the Tribunal makes the following overall adverse credibility findings about the [applicant’s] limited claims of past incidents of harm and the real chance or real risk of harm he faces, now and into the foreseeable future.
The Tribunal set out the reasons why it placed little or no weight on the employer reference, finding it to be a fabrication and submitted to ‘augment’ the applicant’s ‘weak’ claims after he had abandoned the falsified initial claims: [52].
The Tribunal then set out its rejection of each aspect of the applicant’s new claims based on the adverse credibility findings and the country information ‘taken cumulatively’: [53]. For completeness, the Tribunal also rejected each of the applicant’s initial claims: [54].
The Tribunal concluded that the applicant did not have ‘any genuine personally held fears of persecution when he arrived in Australia, or at the time of his application for a [Protection visa] or anytime thereafter’ as it did not accept the applicant to have been ‘a reliable or credible witness’ having regard to the initial claims and new claims: [55].
The Tribunal therefore concluded that the applicant did not meet the requirements of s 36(2)(a) of the Act: [57]-[58], [63].
Having regard to its earlier factual findings under the rubric of the Refugees Convention, the Tribunal also concluded that the applicant did not meet the requirements of s 36(2)(aa) of the Act concerning an entitlement to ‘complementary protection’: [60]-[62], [64].
Thus, the Tribunal affirmed the delegate’s decision: [66].
Procedural history
On 25 January 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit to which he exhibited a copy of that decision and the Reasons but which adduced no further evidence in relation to his application.
By a Response filed on 10 February 2017, the Minister sought dismissal of the application.
Although the application was dismissed for non-appearance on 2 August 2017, the application was reinstated, by consent, on 27 September 2017.
On 24 October 2018, orders were made by consent affording the applicant an opportunity to file any amended application, supplementary evidence and submissions. The applicant did not take that opportunity.
An affidavit was filed on behalf of the Minister on 26 October 2018. The affidavit, which was affirmed on that date, exhibited the documents which were the subject of the Certificate and a copy of that Certificate. The affidavit deposed as to the history of events giving rise to the Tribunal’s receipt of the Certificate and the Minister’s waiver of any claim to withhold disclosure of those documents by reason of any confidentiality, privilege or public interest immunity which might inhere in the information contained in those documents.
The affidavit, together with exhibits, was served on the applicant some five weeks before the hearing.
On 27 November 2018, the Minister filed written submissions which were responsive to the matters contained in the application.
Consideration
Criteria for the grant of a Protection visa are contained in s 36.
Being a privative clause decision[1], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3]
[1] Section 474(2).
[2]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Sub-s 476(2).
As the applicant was self-represented before me, I have re-examined the materials in the court book and the Reasons of the Tribunal.
The application advanced three grounds of review.
Ground 1 – error of law
Ground 1 reads:
That the Member in the [Tribunal] erred in law and therefore fell into jurisdictional error by not applying the facts of the case to s.36(2)(a) & s.36(2)(aa) of the [Act] correctly as a whole.
The application contained no particulars to this ground and was liable to dismissal on that basis alone.
From my review of the Reasons in relation to the legal principles applicable to the grant of a Protection visa upon the refugee criterion at [5]-[15], the criterion applicable to complementary protection at [16]-[18] and the guidelines issued pursuant to s 499 at [19], I see no error in the Tribunal’s statement of those principles. Upon my examination of the Reasons concerning the application of those principles to the facts as found by the Tribunal, I also discern no error in the approach which was taken by the Tribunal to the discharge of its statutory task. Further, it was entirely open to the Tribunal to rely upon its findings of fact concerning the Refugees Convention in its disposition of the applicant’s claims to engage Australia’s complementary protection obligations: CDY15 v Minister for Immigration and Border Protection.[4] To say as much is to recognise that the Tribunal was entitled to apply its findings on the same set of facts to the two tests posed by ss 36(2)(a)-(aa).
[4] [2018] FCA 175, [25]-[30] (Derrington J).
As Ground 1 is wanting for specificity or substance, I do not locate any error as is now complained of by the applicant by Ground 1.
Ground 1 is rejected.
Ground 2 – failure to consider evidence
Ground 2 reads:
That the Member in the [Tribunal] erred in law and therefore fell into jurisdictional error by failing to properly consider the evidence before them and its application to the Act and/or the related Migration Regulations
Particulars
i. By discounting the evidence that indicated a real risk of significant harm should the Applicant be forced to return to Malaysia;
ii. By summarily dismissing much [of] the evidence that linked the Applicant and his family to various threats to their safety;
iii. By failing to consider the evidence submitted by the Applicant in totality and cumulatively.
iv. By placing too much weight on the amount of time since the Applicant had received threats, failing to properly consider the protection & anonymity he garnered from being in Australia since 2010.
As the application contained particulars of the alleged jurisdictional error, the court is obliged to consider whether the ground is properly made out: DAO16 v Minister for Immigration and Border Protection;[5] BZD17 v Minister for Immigration and Border Protection.[6]
[5] (2018) 353 ALR 641, [47] (Kenny, Kerr and Perry JJ).
[6] [2018] FCAFC 94, [24] (Perram, Perry and O’Callaghan JJ).
I accept the Minister’s submission that each of the particulars to Ground 2 seek impermissibly to challenge the merits of the Tribunal’s decision. The Tribunal’s findings were clearly open to be made by it on the available material. The Tribunal had regard to available country information which confirmed that the police had carried out Operation Cantas Khas and that several gang members including the leader of Gang 36 had been killed. The Tribunal evaluated the question of risk of harm upon the claims that were made originally and as reformulated by the applicant once he had admitted to the falsity of the original claims.
Moreover, it is clear that the Tribunal considered the applicant’s claims cumulatively – so much is apparent from examination of the Tribunal’s Reasons at [53], [62]. I consider that Ground 2 is without merit.
Ground 2 is rejected.
Ground 3 – credibility
Ground 3 reads:
That the Member in the [Tribunal] erred in law and therefore fell into jurisdictional error by making erroneous implications as to the Applicant’s credibility as a witness by:
a) Placing too much weight on the fact the Applicant had previously given false evidence, as it was proven that such evidence was wholly derived by his then migration agent, Tommy Lai.
b) Placing too much weight on the Applicant’s inability to remember the intrinsic details of events that happened long ago and before he arrived in Australia.
c) By failing to recognise that the Applicant had acted in good faith during the whole Protection Visa process, and that the matter has only been delayed due to his original migration agent’s wrongdoing.
The Tribunal correctly set out a statement of the applicable principles respecting the approach to be taken by an administrative decision-maker in evaluating issues of credit at [39]-[44] including those contained in the applicable guidelines.
As concerned issues of credibility:
a)the Tribunal identified that it had ‘particular credibility concerns’ that the applicant was ever wanted as a former member of Gang 36, or any other gang. The Tribunal observed, based on cited country information, that Gang 36 was ‘very violent and armed and targeted by [Malaysian] authorities’. It found the applicant’s claim that he had not partaken in threatening or violent behaviour as a member of Gang 36 as ‘not consistent with his own fears of persecution that he feared violence’. The Tribunal also expected that the applicant would have claimed to have undertaken some criminal or anti-social activities ‘however minor’ if he had actually been involved with a criminal gang. The Tribunal did not accept that the applicant had been involved in a criminal outfit or network in accepting voluntary payments from businesses, having regard to the cited country information. It considered that the applicant was not involved with a gang, or gang activities, in the past: [48];
b)the Tribunal considered the quantum of money the gangsters demanded of the applicant in order to be released from the gang was ‘very low given the level of offence the [applicant] claimed the gang took when he left its membership’. The Tribunal considered that, had the gang been credibly offended by the applicant, it would have maintained its threats towards the applicant either directly or towards his father or would have demanded payment from the applicant’s family beyond 2011. The Tribunal would have expected physical harm or harassment towards the applicant’s family ‘given the level and kind of criminality [attributed to Gang 36]’. The Tribunal also observed that the applicant’s father had returned to Malaysia after visiting his son in Australia, which indicated to the Tribunal that his father had no fear upon so returning. The Tribunal also observed that the applicant had made no effort to pay the gang while he had been in Australia for a considerable period of time. It contrasted the applicant’s characterisation of Gang 36 as ‘violent and ruthless’ as not being ‘consistent or persuasive’ with the ‘relatively small amount of money’ they sought to extract from him. The Tribunal also had regard to the claimed ‘benign’ activities the applicant was involved in, and the absence of ‘ongoing or acted upon’ threats to the applicant’s family. These matters led the Tribunal to consider the applicant’s otherwise limited and vague claims were not credible as a whole: [49].
c)the Tribunal outlined its specific concerns with the applicant’s inconsistent evidence regarding the photographic evidence which the applicant had submitted concerning his Indian friend who was covered in blood, bruises and lacerations. The Tribunal noted that the applicant claimed that this man was his best friend and had been a member of Gang 36 until 2015. The Tribunal found serious inconsistencies in the applicant’s claims. On the one hand, he claimed to have received no threats since 2011 by any gang member and on the other hand claimed to have maintained ongoing contact with gang members. The Tribunal found it ‘considerably inconsistent and unpersuasive’ to have maintained contact with a gang member when he also claimed to fear harm in the form of extortion and serious physical assault from the gang. These aspects ‘strongly’ indicated that the applicant did not have credible claims to ongoing fears of any gang members arising from past membership or for any other reasons. The Tribunal also identified its reasons as to why it gave no weight to photographs submitted by the applicant: [50].
Three particulars to Ground 3 are provided.
The applicant complains that the Tribunal placed too much weight upon his having previously given false evidence. He does so in circumstances where he had admitted the evidence was false but sought to attribute responsibility to his former migration agent for having done so. The explanation did not at any stage seek to suggest that the applicant had not known the content of that false evidence or that he had not known of its falsity at the relevant time. The findings of falsity were entirely open and it was a matter for the Tribunal to determine what weight it should apply to it. Contextually, the Tribunal did not attribute dispositive significance to this finding. It was but one of the matters to which the Tribunal attached weight and concluded upon a cumulative assessment of the matter that the criteria for the grant of a Protection visa were not satisfied and that the decision of the delegate should be affirmed.
Insofar as the applicant complained that the Tribunal had placed too much weight upon his ability to remember intrinsic details of his claim or history, there is nothing in the Reasons to support this.
As to the suggestion that the Tribunal had not recognised that the applicant had acted in good faith, this appears to be an impermissible merits review of the application.
The applicant made no real attempt to impugn the Tribunal’s key findings on recognised grounds such as legal unreasonableness, procedural unfairness, reaching a finding without a logical, rational or probative basis or failure to give proper, genuine, or realistic consideration to the issues and material before the Tribunal.[7] The particulars of matters complained of arise in relation to an administrative decision and represent an impermissible attempt at merits review. In general, the weighing of various pieces of evidence is a matter for the Tribunal: Minister for Immigration and Citizenship v SZJSS.[8]
[7]BZD17, supra [2018] FCAFC 94, [33].
[8] (2010) 243 CLR 164, 176 [33] (The Court).
Although the Tribunal’s decision to affirm the delegate’s decision to refuse the Protection visa application turned, in large part, upon adverse credibility findings, the Reasons do not indicate that the making of those findings is such as to invite challenge. In this context, it must be accepted that the analysis of a ground based on adverse credibility findings is not to be approached by resort to fixed categories or formulas: CQG15 v Minister for Immigration and Border Protection;[9] ARG15 v Minister for Immigration and Border Protection.[10] Nonetheless, I am satisfied that the Tribunal did engage actively with the issues presented by the application for a merits review of the delegate’s decision.[11]
[9] [2016] FCAFC 146, [38(a)-(d)] (McKerracher, Griffiths and Rangiah JJ).
[10] [2016] FCAFC 174, [83] (Griffiths, Perry and Bromich JJ).
[11] Cf BZD17, supra [2018] FCAFC 94, [37]-[38].
Applying the settled principle[12] that a high degree of caution must be exercised before finding that adverse credibility findings expose error in an administrative decision of a kind which is jurisdictional in character, I decline to do so in this case.
[12] Cf BZD17, supra [2018] FCAFC 94, [35]-[36].
Ground 3 is rejected.
Certificate
The applicant was not informed, and was not aware at any stage in the course of the application before the Tribunal, of the existence of the Certificate or the documents to which it related or the information which they contained. Equally, the Reasons do not refer to the existence of the Certificate or any of the documents to which the Certificate related. Save for the reference to the prosecution of the applicant’s former migration agent and the fact that the applicant was to have been a prosecution witness, the Reasons do not refer to any of the information which they contained.
The failure to so inform an applicant of those matters may be the subject of complaint on the basis of a denial of procedural fairness.
In the present case, the Certificate, the subject documents and the information that they contained were provided to the applicant some five weeks before the hearing in this court. The fact that the documents were so provided is also to be considered in the context that the Minister’s written submissions were served on 28 November 2018.
No argument or submission was made by the applicant raising objection to the non-disclosure of the Certificate or the documents which it identified, or to the non-disclosure of information in those documents or to the manner of the Tribunal’s conduct of the matter in failing to disclose the existence of that information to him. To say as much serves only to underline that the applicant was self-represented. For that reason, I have given consideration to the possible implications of non-disclosure upon the application for judicial review.
The Tribunal was obliged to afford the applicant procedural fairness. This meant that the applicant was entitled to a fair process and hearing. It is not the existence of the obligation but its scope and operation in the circumstances of the particular case which is in issue.
As the applicant had made application for a Protection visa, the conduct of his application for a review by the Tribunal was governed by Part 7.
For the purposes of Part 7, Div 4 contains an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals: s 422B(1). Within Div 4, ss 424AA and 424A generally require that, at or before a hearing, a Tribunal must give to an applicant in a way which it considers to be appropriate, clear particulars of any information that it considers would be the reason or a part of the reason for affirming the decision under review. In turn, where the Tribunal is to conduct a hearing before making a decision by way of review, it must invite an applicant to such hearing: s 425. In doing so it must afford the applicant an opportunity to give evidence and present arguments on the issues arising on the decision under review: s 425A(1).
An applicant so invited to a hearing is entitled to a real and meaningful opportunity to give evidence and present arguments on those issues. To exercise that opportunity, the applicant might have been entitled to be informed of the documents contained in those folios of the Departmental file in order that he might have an opportunity to at least consider whether to object that such documents should be produced for his consideration, whether at, before or even after the hearing. The claim to such an entitlement might be grounded upon the Tribunal’s obligation to inform an applicant either before, or at, a hearing of information which was in its possession which it considered would be the reason or a part of the reason for affirming the delegate’s decision. It might also be discerned from the fact that the information could on occasion be considered supportive of the applicant’s claims.
Considered from these perspectives, a complaint of want of procedural fairness is informed in part by the determination of whether the information in the subject documents was of a kind which would have been the reason or a part of the reason for affirming the delegate’s decision. It might, in the alternative, have been demonstrated or supported by a conclusion that the information would have been supportive of the applicant’s claims and available to be relied upon had it been known.
In Minister for Immigration and Border Protection v SZSSJ,[13] a Full High Court held that:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
[13](2016) 259 CLR 180, [83] (Applying SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32], (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also BRF038 v The Republic of Nauru [2017] HCA 44, [58]-[59]).
It may be accepted that it is necessary to identify, at some level of specificity, the nature of the inquiry to be conducted and the issues that are to be considered. For example, in SZMUF v Minister for Immigration and Citizenship,[14] Flick J stated:
Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard. But procedural fairness does not require “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”[15]
[14][2009] FCA 182, [22]. See also ABV16 v Minister for Immigration and Border Protection [2017] FCA 184, [27] (Bromberg J) and cases cited.
[15]Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31], 206 CLR 57 at 69 per Gleeson CJ and Hayne J.
Thus, the scope of the obligation of procedural fairness is not at large. Indeed, sub-s 422B(1)-(2) confirm as much in ‘exhaustive’ terms in the context of an application for the review of a Part 7 Reviewable decision. Generally, where the obligation is engaged, procedural fairness will require that the appellant be given the opportunity of ascertaining the relevant issues and commenting on any adverse information that is credible, relevant and significant: HFM045 v The Republic of Nauru.[16] The decision maker must give notice of issues which are ‘live’, including the assumptions that may underpin a decision: see BMF16 v Minister for Immigration and Border Protection.[17]
[16] (2017) 350 ALR 34, [51].
[17] [2016] FCA 1530, [162]-[163].
As noted above, in SZSSJ the Court held[18] that ordinarily there was no requirement to notify a person of information which is in the possession of, or accessible to, the decision maker which he or she has decided not to take into account at all in the conduct of the inquiry. Nor is the Tribunal required to give a person a running commentary upon their prospects of success, so that there is, in effect, a forewarning of all possible reasons why a decision may be made to affirm a decision that is the subject of a merits review.
[18] (2016) 259 CLR 180, [83].
In Snedden v Minister for Justice for the Commonwealth of Australia,[19] Middleton and Wigney JJ observed that:
The rules of procedural fairness do not have an immutably fixed content. . . What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts. . .
I apply those principles in the present application.
[19] (2014) 230 FCR 82, [177].
Further, Div 7 of Part 7 contains a number of miscellaneous provisions and comprises ss 437-440. Relevantly, s 437 provides that despite anything in the Act, the Secretary must not give to the Tribunal a document or any information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would by contrary to the public interest on either of the two grounds contained in paras 437(a) or (b); namely, that:
a)disclosure would prejudice the security, defence or international relations of Australia, or
b)disclosure would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
Neither of those grounds was applicable in this case.
Section 438 applies both where a certificate has been given under s 437 and where the document, the matter contained in the document, or information, was given to the Minister, or to an officer of the Department, in confidence. Sub-sections 438(3) and (4) read:
(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 Tribunaldiscloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
Sections 437-438 are taken, insofar as they relate to Div 4 of Part 7, to be an exhaustive statement of the natural justice hearing rule in relation to the matters with which they deal: s 422B(2).
Accordingly, where s 437-438 apply, a discretion is conferred on the Tribunal, for the purposes of the exercise of its powers, to have regard to any matter contained in the documents or the information they contained. Where a valid application for review is lodged, the Tribunal must generally conduct a review of the decision under review and when doing so must act according to the substantial justice and merits of the case: ss 414(2), 420(b). When it does so, the Tribunal may exercise all of the powers that were conferred by the Act on the person who made the decision under review: s 415.
Further, where ss 437-438 apply, the Tribunal is also conferred with a discretion, after having regard to any advice provided by the Secretary, to disclose to an applicant any matter that is contained in the documents the subject of a certificate or the information which they contain.
The Minister quite properly conceded that the Certificate was invalid. The Certificate claimed that the ground upon which disclosure of the documents contained in the relevant folios of the Departmental file were entitled to protection from disclosure was that they referred to internal documents. Counsel for the Minister submitted, correctly, that this was not an available ground upon which to withhold disclosure under s 438. Invalidity does not necessarily compel a conclusion that the decision of an administrative decision-maker is tainted by jurisdictional error. [20] In particular, irrespective of the validity of such a certificate, if the documents withheld from production were found on inspection to be incapable of having any bearing on the decision of the Tribunal, the court will in general conclude that non-disclosure could not have deprived the applicant of an opportunity to advance his or her case before the Tribunal: Minister for Immigration and Border Protection v CQZ15.[21]
[20]CQZ15 v Minister for Immigration and Border Protection (2017) 253 FCR 1, 15 [74] (Kenny, Tracey & Griffiths JJ); BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36, [30] (Kenny, Tracey & Griffiths JJ). The Minister submitted that on 10 September 2018, the High Court of Australia had reserved judgment in respect of appeals brought from the Full Federal Court of Australia in each of CQZ15 and BEG15: Minister for Immigration and Border Protection v SZMTA; CQZ15 and BEG15 v Minister for Immigration and Border Protection [2018] HCATrans 177. In this case, I consider that I should not defer a decision in the matter until judgment in those appeals and continue to apply the law as decided in CQZ15.
[21] [2017] FCAFC 194, [69].
I do not consider that the non-disclosure of the Certificate, the subject documents or the information within them entailed any want of procedural fairness in this case. I also accept the submission that the documents were not relevant. As stated above, save as to the fact of the prosecution of the former migration agent and applicant’s role as a witness, the documents were not referred to by the Tribunal at any point.
The Reasons contain no reference to the documents that were exhibited to the Minister’s affidavit. As stated above, speaking of the scope of the obligation to afford procedural fairness, in SZSSJ,[22] the Full High Court held there is ordinarily no requirement that a person be notified of information which is in the possession of, or accessible to, the decision-maker but which it has chosen not to take into account at all in the conduct of the inquiry.
[22] (2016) 259 CLR 180, [83] (The Court).
If I am wrong in the conclusion that the non-disclosure did not give rise to a failure to accord procedural fairness to the applicant, I also consider that it was immaterial to the Tribunal’s decision and could have made no difference to the result of the application. More precisely, the failure to make disclosure if erroneous, was not jurisdictional.
I have examined the documents in question and accept the submission that the information which they contained could not have made a difference to the result of this application. The information was contained in communications being an email chain over the period November 2014 to September 2015. The communications concerned the progress of the prosecution of the applicant’s former migration agent, Tommy Lai, and the possibility that the applicant may be called as a prosecution witness. The communications referred to the fact that there was a ‘decision bar’ in place in relation to the progress of the Protection visa application and that it was, at one point, anticipated the prosecution would progress more quickly if a plea of guilty was given by the accused. In one email, the statement was made that an officer of the Department had spoken to the applicant who had relayed that he could not go back to Malaysia by reason of ‘some problems’ which he did not elaborate and because he wished to study in Australia and would speak with a migration agent about the matter. In a later email, a communication was made advising that the prosecution was expected to proceed in July 2015 and that the Department would, for that reason, recommend the applicant be given a bridging visa pending the completion of that prosecution. The two further emails record that the Department was happy for the Protection visa application to remain in abeyance pending the completion of the prosecution and that the trial was expected to proceed in October 2015. I consider that the information contained in those documents was of no, or at best marginal, relevance to the issues arising on a review of the delegate’s decision. By way of example only, because the applicant had made a candid admission, there was no issue falling to be determined whether his former migration agent had been the source of the supply of false information which had been included in the applicant’s original claims for protection. The applicant had readily agreed that this was so. The question whether the agent had been the source and inspiration for the supply of false information was not an issue which required determination. To the contrary, it had been agreed.
It was accepted that the Minister bore the onus of establishing that the existence of the Certificate and the information contained in the documents within the relevant folios of the Department’s file was immaterial to the Tribunal’s decision and could have made no difference to the result of the application for a merits review of the delegate’s decision: Minister for Immigration and Border Protection v CQZ15.[23]
[23] [2017] FCAFC 194, [72]-[73].
For the reasons given at [82]-[86] above, I agree that the applicant suffered no disadvantage by reason of non-disclosure of the Certificate or the information contained in the subject document: DDN16 v Minister for Home Affairs.[24]
[24] [2018] FCA 1697, [37] and cases cited (Robertson J).
Fraud?
Although this issue was not raised by the Minister, I recognise and have also considered that there may be occasions in which the fraud of a migration agent may be held to taint the process of administrative review. I do not consider that the principles applicable in such cases to be of assistance to the present case.
The present case may be distinguished from those in which an agent’s fraud had been practised directly upon an applicant: e.g. SZFDE v Minister for Immigration and Citizenship.[25] In such cases, an agent’s fraud bears the legal character of having stultified critically important natural justice provisions of the Migration Act,[26] the effect of which may be that the Tribunal’s decision is to be regarded as no decision at all by reason that its jurisdiction remained constructively unexercised.[27]
[25](2007) 232 CLR 189.
[26](2007) 232 CLR 189, [49]-[51].
[27](2007) 232 CLR 189, [52].
In making a visa application the Act will generally attribute responsibility to an applicant for the veracity of the information which is provided: cf Trivedi v Minister of Immigration and Border Protection;[28] Singh v Minister for Immigration and Border Protection.[29]
[28] (2014) 220 FCR 169, [49] (Buchanan J, Allsop CJ and Rangiah JJ agreeing).
[29] [2018] FCAFC 52, [144] (Griffiths and Moshinsky JJ).
In lodging his Protection visa application, the applicant made a statutory declaration in which he declared that the information which it contained was correct. The declaration contained the following statement:
WARNING: Giving false or misleading information is a serious offence
The applicant’s name and signature appeared beneath and immediately adjacent to that warning.
The applicant appeared before me without an interpreter and impressed me as a person with a proficiency in the English language. In completing his response to the hearing invitation before the Tribunal the applicant indicated that he did not require an interpreter.
The applicant candidly admitted that he had known that the agent had assisted him in advancing his initial claims and that they were false. These considerations undermine a suggestion that this was a case in which the applicant was advancing a complaint that he had been the victim of a fraud on the part of that agent: cf AMF15v Minister for Immigration and Border Protection.[30]
[30](2016) 241 FCR 30, [38] (Flick, Griffiths and Perry JJ) citing SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 (FC).
Such cases are also distinguishable from those grounded upon an agent’s bad or negligent advice or some other mishap for which the applicant should not be heard to complain that such detriment has vitiated the decision the subject of challenge.[31]
[31](2007) 232 CLR 189, [53]; cf Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, [33] (Tamberlin, Finn and Dowsett JJ). SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73, [52], [60] (Perram, Robertson and Griffiths JJ).
In this case, the applicant’s complaint would seem, at its highest, to be that he had been complicit in completing his declaration as to the truth of the matters contained in his Protection visa application when he knew that the claims he had made as to fear of persecution were false.
Conclusion
As I have rejected each ground of review and consider that no other ground is revealed by the materials comprised in the Court Book or the Reasons, the application must be dismissed.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 20 December 2018
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