Aks17 v Minister for Immigration

[2017] FCCA 3302

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKS17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3302

Catchwords:
MIGRATION – Application for judicial review – whether Tribunal erred in failing to put material covered by certificate issued under s.438 of the Migration Act 1958 (Cth) to the applicant for comment – whether denial of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.438, 424AA

Cases cited:

BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198

Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197
Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194
Stead v State Government Insurance Commission (1986) 161 CLR 141
SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157
Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

Applicant:	AKS17
First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 213 of 2017

Judgment of: Judge Riethmuller

Hearing date: 11 December 2017

Date of Last Submission: 11 December 2017

Delivered at: Melbourne

Delivered on: 11 December 2017

REPRESENTATION

Counsel for the Applicant: Ms Grinberg

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Hosking

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed 2 February 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 213 of 2017

AKS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 January 2017 declining to grant the applicant a protection visa. 

2. The applicant is from Pakistan and sought a protection visa on a number of different bases set out at para [12] of the Tribunal’s decision.  In substance, his claims relate to his religion and his position as a businessman in Pakistan.  Further detail of these claims is set out at court book p.54 in the information that he provided to the Department. 

3. The Tribunal did not accept that he was a witness of credit, saying:

   35.  Based on the evidence provided to the Department and the Tribunal, the Tribunal has concluded that the applicant is not a credible witness and that he has fabricated the key elements of his claims.  Specific examples of inconsistencies in the applicant’s evidence which support this finding are discussed in detail below.  In general, the Tribunal considered that the applicant was evasive when providing evidence at the hearing, giving brief answers, seeking to avoid providing detail, providing misleading evidence and untrue evidence.  His representative commented at the hearing on the applicant’s matter, noting that he (the representative) did not accept the evidence given by the applicant that he had not spoken with his wife for the last six months, and that this raises credibility issues.  The representative asked that the Tribunal accept that the applicant’s ‘shortfall’ is that he has no capacity to explain his story and has often responded with one word answers.  The representative also asked that the Tribunal allow for the fact that applicants’ get anxious and will not always be able to provide oral evidence that is 100 per cent consistent with earlier written statements.  The Tribunal has taken the representative’s comments into account but finds, for the reasons detailed below, that these factors do not account for the deficiencies in the applicant’s evidence, and therefore finds that the applicant is not a credible witness.

4. Thereafter, the Tribunal set out at great length and detail its reasoning as to why it had concluded that the applicant was not a witness of credit and that it did not accept his evidence. 

5. A significant point that arose was whether or not the Tribunal accepted that he was self-employed or ran his own company, so to speak, or was an employee of another.  On this issue the Tribunal said:

   43. The delegate indicated in his decision record that the applicant did not provide any supporting documents regarding his business activities and the delegate was unable to locate any information about this company on any internet business directory entries, but stated that he extended the benefit of the doubt to the applicant and accepted that he owned and operated a successful business in Pakistan.  The Tribunal advised the applicant at the hearing that it might not make the same finding as the delegate and indicated that it also was unable to locate any references to this company through internet searches.  The Tribunal asked the applicant if the manufacture of surgical equipment was a common business in Sialkot, noting that the Tribunal’s internet searches indicated that Sialkot appeared to be a centre for the manufacture of surgical instruments, cutlery and soccer balls.  He indicated that Sialkot was second to Germany in this field.  In relation to being unable to find references to the company he said if a bill is not paid for a month then the website is turned-off.  The applicant commented at the hearing that he had not brought any papers with him to Australia but could show the Tribunal how they made items and how these instruments are used.  The Tribunal commented that it could not find any historical records or references to the company which seems surprising given he indicated it was a very successful export business with a national and international reputation.  He said they had not made payments for one to one and a half years so it was now disconnected from the phone and internet and that may be one of the reasons.  The applicant said that he had a 50:50 share in the company with his younger brother.  The Tribunal queried the applicant that his statement said he had a 34% share.  He commented that his initial stake was 34% and each of his two younger brothers had 33% but the brother with whom he no longer has any contact withdrew after around 5-6 years.  The Tribunal queried the applicant that his statement made no mention of his other brother being involved with the business and said he went into partnership with his younger brother in October 2000.  The applicant commented that when he made the statement his brother had already withdrawn.

   44. When asked about the business, the applicant indicated that they could make some surgical items such as needles and scissors at their own premises, but other instruments required ‘23 hands to work on them’ and were made outside.  The Tribunal queried the applicant that it appeared to be a highly skilled business and quite a leap from what he had been doing in his father’s herbal medicine business.  He said he had friends who were highly experienced in the field who helped him and provided some of the workers.  The Tribunal queried why they would help him to go into business in competition against them.  He said they encouraged him and he did not sell to their customers.  The applicant said they had a factory just off Daska Road in Sialkot and employed around 20 permanent staff.  He said the office was also located there.  When asked how they marketed their goods he said that while they had a website: Awaisassociate.com.pk, they contacted suppliers directly by phone or in person due to the low literacy levels in Pakistan.  The Tribunal queried that people who work in hospitals would have low literacy and the applicant responded that they did not deal directly with hospitals but dealt with suppliers.

   45. At the hearing the Tribunal had significant doubts regarding whether the applicant and his brother/brothers set up and ran a surgical instrument’s manufacturing and supply business in 2000.  The Tribunal would expect that if this had been the case and the business operated for thirteen years until as recently as August 2013, and if the business was as successful as the applicant claimed, there would be some historical references to the business on the internet.  While the Tribunal accepts from the applicants evidence at the hearing that he had knowledge of the processes involved in manufacturing such equipment, the Tribunal was not convinced by the applicant’s claims that he was able to establish a new business in this highly specialised field with the assistance of friends who were already in the field and who also provided him with skilled staff.  Despite the concerns raised by both the delegate and the Tribunal the applicant has not sought to obtain and provide any documents supporting his claim that he established and ran this business with the support of his father and in partnership with his brothers/brother for thirteen years.  After considering the totality of the applicant’s evidence, including the matters discussed below, the Tribunal concluded that the applicant did not establish his own surgical instruments business but likely worked for a time for an established surgical instruments manufacturing and supply business.

6. The applicant seeks judicial review on two grounds in the amended applications framed as follows:

   1.  The Tribunal failed to complete its jurisdictional task and failed to accord the applicant procedural fairness by failing to consider whether the document supported the applicant’s visa application and whether disclosure should be made to the applicant.

   Particulars

   (a) A delegate of the Minister notified the Tribunal that section 438(1)(b) of the Migration Act 1958 (Cth) (the “Act”) applied to the information in certain specified documents.

   (b) The Tribunal found that the section 438 certificate was invalid.

   (c) The Tribunal then considered whether the information should be put to the applicant for comment under section 424AA of the Act.  Because the Tribunal did not consider the information was information that would be the reason or part of the reason for affirming the decision under review the Tribunal did not put the material to the applicant.

   (d) The Tribunal failed to consider whether the documents covered by the purported certificate supported the applicant’s application and whether disclosure should be made to the applicant on this basis.  

   2. The Tribunal failed to accord the applicant procedural fairness by failing to disclose the existence of the purported section 438 certificate and the material it covered.

   Particulars

   (a) A delegate of the Minister notified the Tribunal that section 438(1)(b) of the Act applied to the information in certain specified documents.

   (b) The Tribunal did not disclose the existence of the section 438 certificate to the applicant, nor did it disclose the material covered by the purported certificate.

7. The grounds were obviously drawn before the more recent decisions of the Full Court of the Federal Court dealing with the question of invalid certificates: BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198, Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, and Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194. It is, therefore, convenient to deal with the grounds together on the basis of answering the question of whether or not the material purportedly covered by the certificate that was not shared with the applicant could not possibly have led to a successful outcome: see para [73] of CQZ15 and the reference to Stead v State Government Insurance Commission (1986) 161 CLR 141 at p.147 where the High Court said:

   All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome.  In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.

8. The relevant passage of the Tribunal’s decision in this case appears at paras [27] – [28] which state as follows:

   27.  The Departmental file contains a notification regarding the disclosure of certain information under s.438 of the Act (See folio 153 of Departmental file CLF2013/254284).  This relates to information on the file (See folios 88-92 of Departmental file CLF2013/254284) regarding the applicant having applied for visas to the United Kingdom (UK).  The Tribunal considered this information and the notification under s.438(1)(a) that the Tribunal’s use and disclosure of this information is subject to the provisions of subsections 434(3) and (4) of the Act because disclosure of the information would be contrary to the public interest as it reveals the inner workings of the Department.  The Tribunal found that this was not a valid certificate under s.438 of the Act, however, it was clear from their evidence that the applicant and his representative are well aware that Australia may share certain immigration information with the UK and the material in question was marked indicating that it ‘may be disclosed to the data subject as part of immigration case handling in accordance with relevant privacy and/or FOI laws and policies.’

   28.  Having found the notification was not a valid certificate under s.438 of the Act the Tribunal considered whether this information should be put to the applicant for comment under s.424AA of the Act.  As the applicant having held visas for travel to the UK and having travelled to the UK in the past was not an issue in contention in this case, and therefore the Tribunal did not consider that this information was information that would be the reason or part of the reason for affirming the decision under review, the Tribunal did not put this information to the applicant.

9. The material that was the subject of the certificate has been annexed to an affidavit by a solicitor for the Minister and appears in annexure ACX-3.  There are a number of pages that were originally folioed from pp.88–92.  The content of the information appears to be an administrative form, providing information that has been obtained from the United Kingdom which confirmed the identity of the applicant through use of fingerprints obtained when visas were issued and further confirmed that he did, in fact, hold a visa from the United Kingdom as alleged and that that visa was valid until 16 May 2018. 

10. It was not in issue in the proceedings before the Tribunal that he had correctly stated his identity.  The Tribunal said:

    26. On the basis of the copies of the applicant’s passports provided by the applicant to the Department (See folios 59-65 of Departmental file CLF2013/254284), and noting the delegate’s findings in this matter, the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as he claims it to be.  The Tribunal accepts that Pakistan is the applicant’s country of nationality for Convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.

11. As can be seen from para [28] of the Tribunal’s reasoning (set out above), the Tribunal did not see it as an issue in the proceedings that was in contention whether or not the applicant held visas for travel to the United Kingdom and had travelled to the United Kingdom in the past.  This is in accord with submissions that the applicant had made in writing which appear at p.109 of the court book where he set out that he had been to the United Kingdom on more than one occasion, that he had been for business and that on another occasion it appears he went for both health and business reasons.  There does not appear to be anything else within the information covered by the certificate that could be relevant to the proceedings.

12. It is difficult to see how the information confirming facts that are not in contention before the Tribunal could be relevant information that may possibly make a difference to the proceedings or possibly lead to a successful outcome by the applicant.  Confronting this difficulty, counsel developed her argument to be one whereby it was argued that the information that was obtained confirming that the applicant held a United Kingdom visa may have led to a chain of inquiry whereby details could have been obtained of that visa application, which may have shown the basis of that visa application, which may have shown that it was set out in that application that he worked for his own company rather than some other entity.  That would have required information to be obtained from the United Kingdom of the visa application itself, as the visa application was not contained within the documents that were provided to the Tribunal.

13. It was, of course, known to the applicant throughout that he held a visa to travel to the United Kingdom for business, and it would have been known to him throughout the basis upon which he obtained that visa and what representations, if any, he had made to the United Kingdom Government in order to obtain that visa.  It does not seem to me that there is anything contained within the information that was purportedly covered by the certificate which was not already well known to the applicant.  The applicant could have acted upon that material, even without having seen the copies of the confirmation that the visa has previously issued to him, as it was within his knowledge (having relied on that visa in the past to travel to the United Kingdom). 

14. Counsel sought to rely upon SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055 and Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 in order to further the argument.

15. In SZMTA, White J said:

    58. … the presence of the invalid certificate may have affected in other ways the process by which the Tribunal reached its decision. There is no indication that the Tribunal member was aware that the identified documents were in the appellant’s possession in any event. It seems more likely that the member would have assumed that they were not. That would have been a natural inference from the delegate’s advice that the documents should not be disclosed to the appellant.

    59. The Tribunal member may, in that circumstance, have chosen not to have regard to the identified documents, perhaps because of the perceived necessity then to consider whether the documents should be disclosed to the appellant or perhaps he wished to avoid referring to documents which he believed the appellant had not seen. If the member made that decision, he would not have had regard to matters in the documents which may have assisted the appellant, for example, the letter of support of 13 August 2010 from the appellant’s colleague or those documents containing summaries of the appellant’s claims.

    60. In short, the effect of the jurisdictional error in the present case is not to be determined by reference only to whether the appellant had the opportunity to make submissions about the matters in the identified documents which were adverse to him. Account should also be taken of the prospect that, by reason of the presence of the delegate’s notification, the Tribunal did not have regard to information in the identified documents which may have assisted the appellant.

16. It is important to note the context in which White J came to those conclusions in SZMTA. In that case credibility issues were in play, and the material referred to by White J at para [59] appears to have been material that would have supported the appellant’s credibility in that case, had it been placed before the Tribunal. The reasoning of White J explains why there were real concerns in that case as to whether or not the Tribunal may have had regard to evidence that would have supported the appellant or potentially supported the appellant, given the way in which the Tribunal dealt with the material.

1. In this case it cannot be said that the same issue arises in that the only matter to which this material went directly, was to the question of whether or not the appellant was who he said he was and held a business visa to travel to the United Kingdom.  Both of those facts were completely accepted by the Tribunal and, importantly, the business visa was not considered by the Tribunal to even be an issue in contention.  It cannot be said that there was something within the material covered by the certificate that could have in some way assisted the applicant in the proceedings before the Tribunal.  In this sense I am not persuaded that the reasoning of White J in SZMTA can be relied upon in the context of this case to lead to a positive result for the applicant. 

2. The applicant also relied upon Dhillon, a decision of the Full Court of the Federal Court, albeit with respect to slightly different provisions of the Act.  Similarly, the problem arose in that case that there was a statement contained within the material covered by a certificate that was not provided to the applicant which could have been relied upon by the applicant to support the applicant’s case.  That particular decision concerned a case about a bogus document and whether or not a skills certificate was actually bogus.  The Tribunal had relied upon admissions made by a fraudster that there were a large number of bogus certificates created and that the subject document was one of them.  However, the fraudster had admitted in the statement that he had no way of knowing whether each of the students for whom he created fraudulent certificates actually completed the training referred to in the certificate.  That part of the statement was not provided and potentially could have corroborated or supported the evidence given by the appellant.  The result was that the appellant was denied a piece of evidence that would have supported their case and possibly led to a different outcome. 

3. In this case I am of the view that the evidence contained within CX-3 went to nothing more than facts that were accepted by the Tribunal, the most important of which was not even considered to be an issue in contention. 

4. At best, the applicant’s case is that confirmation that he in fact held a valid visa to the United Kingdom may have alerted his advisers to the possibility of seeking discovery from the United Kingdom of the visa application to attempt to obtain some potentially corroborating evidence in the form of a previous consistent statement made to the United Kingdom authorities.  He would have known throughout that he had a valid visa to travel for business to the United Kingdom and the basis upon which he obtained such a visa. 

5. Access to the consequential material was not limited by him not having the material the subject of the certificate, nor did the certificate give any indication of what the contents of the consequential material may have been.  It does not seem to me that the decisions in these cases referring to the possibility of a different outcome should be read as being more than the direct result of the evidence that the certificate relates to.  To imply into the breadth of that term a test somewhat equivalent to a Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 discovery test (would the material, although not directly relevant, lead to a train of inquiry that may disclose relevant material) would go well beyond what, in my view, the Full Court of the Federal Court contemplated in those decisions. Even if I am wrong in this regard, the material in this case was always known of by the applicant as he applied for the United Kingdom visa and could have sought his visa application by Freedom of Information from the relevant United Kingdom authority at any time.

6. In the circumstances I am not persuaded that the applicant has established a judicially reviewable error in this regard in this case and therefore I dismiss the application.

I certify that the preceding eighteen (22) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date:  8 January 2018