ALD16 v Minister for Immigration
[2018] FCCA 1185
•17 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALD16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1185 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – where Applicant did not attend Departmental interview or Tribunal hearing – where Tribunal made decision pursuant to s.426A of the Migration Act 1958 (Cth) – whether Tribunal exercised s.426A discretion reasonably and not capriciously – whether Tribunal adopted a harsh approach to judge the application criteria – whether Tribunal afforded the Applicant procedural fairness in the conduct of its review – where certificate issued under s.438 of the Act was not disclosed to the Applicant at Tribunal hearing. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 425A, 426A, 438, 476 |
| Cases cited: AGY16 & Anor v Minister for Immigration & Anor [2017] FCCA 1897 |
| Applicant: | ALD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 432 of 2016 |
| Judgment of: | Judge Baird |
| Hearing date: | 23 April 2018 |
| Date of Last Submission: | 23 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Mr A Keevers of Sparke Helmore |
ORDERS
THE COURT ORDERS THAT:
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 432 of 2016
| ALD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 10 February 2016, affirming a decision of a Delegate of the First Respondent not to grant the Applicant a Protection (Class XA) Visa.
The Applicant is a citizen of India. The Applicant arrived in Australia on 13 June 2009 as the holder of a Subclass 572 Dependent Student visa. He held a number of student visas from the time of his arrival until 28 August 2013. On 26 August 2013, the Applicant lodged an application for a subclass 572 Student visa which was refused on 6 November 2013. On 7 February 2014, the (then) Migration Review Tribunal advised the Applicant that it did not have jurisdiction to review the refusal to grant the visa.
By application received 14 March 2014, the Applicant lodged the application for a Protection (Class XA) Visa, which is the application presently before the Court. He claimed to fear persecution in India for reasons relating to his marriage to a women from a different caste whose family wanted to kill him for marrying their daughter against their wishes. On 23 October 2014, the Delegate refused the grant of a Visa. Relevantly, the Delegate noted that the Applicant did not attend the scheduled interview on 23 October 2014, despite having been invited to attend by a letter dated 18 September 2014.
On 17 November 2014, the Applicant lodged with the Tribunal his application for review of the Delegate’s decision. On 21 December 2015, the Tribunal wrote to the Applicant inviting him to appear before the Tribunal at a hearing on the morning of 10 February 2016. The Applicant did not respond to the Tribunal’s correspondence, nor did he appear at the Tribunal hearing. In the afternoon of 10 February 2016, the Tribunal affirmed the decision under review.
On 29 February 2016, the Applicant filed the application for judicial review in this Court. He framed his application as an application to show-cause.
The Applicant’s application for protection visa
In his application for the Visa, the Applicant claimed in summary, as follows:
(a)the Applicant was a member of the Chauhan caste and his family was the only family of that caste in his home village. The rest of the village was of the Malhi caste. The Applicant fell in love with a girl of the Malhi caste with whom he had an affair before being married to her. The family of the Applicant’s wife, that is, his in‑laws, were extremely hostile about their relationship and threatened to kill the Applicant if the relationship continued;
(b)when the Applicant’s in-laws discovered the marriage, they began looking for the Applicant. They went to the house of the Applicant’s parents and threatened to kill him. The Applicant went into hiding at a relative’s house in a different city. The Applicant’s in-laws continued to look for him, offering a reward for information about his whereabouts;
(c)the Applicant’s parents organised student visas for him and his wife to travel to Australia. The couple arrived in Australia on 13 June 2009 to “save [their] lives and future”;
(d)the Applicant continued to live in fear that he would be subject to an honour killing for the reason of his inter-caste marriage. The Applicant’s in-laws learnt of the Applicant’s whereabouts in Australia, and began to threaten him over the phone and pressured his wife to leave him. According to the Applicant “[t]his caused a lot of tension in our family, and my wife got depressed and scared all the time. I don’t know what happened, and one day, my wife went away, and I lost all contact with her.” He tried his best to find her, but failed. This made him “go into depression as [his] love was lost, and [he] did not have any other reason to live”;
(e)he was emotionally shattered, and he decided to go to India in November 2012 to find her and get her back. He tried to find her but did not succeed. He said: “my in-laws got to know that I am in India, and they attacked me,” and injured the back of his head;
(f)his mother and relatives tried to save him from his in-laws. He fell on the ground unconsciously, and he was hospitalised. He reported the incident to the police, but no action was taken. His in-laws attacked him a second time, and the Applicant hid until such time as he could return to Australia. He does not know where his wife is, or what happened to her;
(g)the Applicant’s in-laws are very powerful and influential people, and he fears for his life if he returns to India. His in-laws: “… have got contacts with the police and the politicians and will either kill [the Applicant] or get [him] behind bars without any reason… They can get [him] killed within seconds from anyone”;
(h)the Applicant’s in-laws’ family are powerful and politically connected, and they will kill him, or have him falsely imprisoned if he goes back.
The Delegate’s decision
By letter dated 18 September 2014, the Applicant was invited to attend a protection visa interview scheduled for 23 October 2014 at the Department of Immigration and Border Protection offices, at 26 Lee Street, Sydney. The Applicant was notified of the scheduled interview by registered post to his street address as indicated on his application.
The Applicant did not attend the interview. No reason was provided to the Department for the Applicant’s non-attendance. The Delegate recorded in its decision that the Applicant has not had the benefit of discussing the details of his claims for protection by participating in an interview with the Delegate. Accordingly, in determining the credibility of the Applicant’s claims, the Delegate was only able to consider the information provided by the Applicant in his written claims and in light of available country information.
The Delegate refused to grant the Applicant a protection visa and the decision was posted to the Applicant with a cover letter dated 23 October 2014.
The Tribunal’s review and decision
The Applicant provided a street address and an email address as his correspondence details in his application for review lodged with the Tribunal on 17 November 2014. On 18 November 2014, by email, the Tribunal acknowledged the receipt of the application.
By letter dated 21 December 2015 and addressed to the Applicant at his email address, the Tribunal invited the Applicant to appear before it to give evidence and present arguments. The letter stated that the Tribunal was unable to make a favourable decision on the information contained in the material before it. The invitation specified a date, 10 February 2016, a time, 9.30 am (NSW time), a location – level 11, 83 Clarence Street, Sydney New South Wales 2000 – and indicated that if the Applicant required an interpreter, he advise the Tribunal at least seven days before the hearing. The invitation also set out the following note:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
The Applicant did not attend the Tribunal hearing. There is no evidence before the Court of any explanation having been provided to the Tribunal by the Applicant, or of any request for an adjournment. As indicated, on 10 February 2016, at 4:14 pm, the Tribunal affirmed the Delegate’s decision.
In its reasons for decision, the Tribunal commenced by recording that the Applicant had not appeared at the Tribunal hearing. It summarised his claims. It also referred to the fact that the Applicant had failed to attend the scheduled interview with the Delegate. It stated that he had provided no further information.
The Tribunal found that the Applicant is a Punjabi Sikh and can read, write and speak in Punjabi, Hindi and English. He completed 10 years of education in India.
The Tribunal recorded that by letter dated 21 December 2015, it had advised the Applicant that it had considered all the material before it, but was unable to make a favourable decision on that information alone and that it invited him to give oral evidence and present arguments at a hearing before the Tribunal on 10 February 2016. As I have noted, that letter contained a statement of the consequences if he did not attend the hearing. The Tribunal recorded that the Applicant did not respond to the letter, did not appear before the Tribunal on the day and at the time and place at which he had been invited to appear, nor did he contact the Tribunal about the failure to attend. He did not nominate a person to be an authorised recipient for him.
The Tribunal found that the invitation was sent to the last address for service provided in connection with the review. Although the Tribunal did not expressly state it, I am satisfied that the address for service was the email address specified in the Applicant’s application to the Tribunal.
In these circumstances, pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The Tribunal noted the Applicant’s claim that if returned to India he would be subjected to serious harm by or on behalf of the family of his wife because of their marriage. It is noted that the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the alleged fear, or that it is “well founded”, or that it is for the reason claimed.
The Tribunal observed that the Applicant’s claims were lacking in detail in significant respects, and that he did not provide detailed information regarding the particular allegations he made. He had not provided detailed information to support his claim that he belongs to the Chauhan caste and that his family are the only members of that caste in their village. He had not provided detailed information to support his claim that all the other people in his village belong to the Malhi caste and do not like his family, nor to support his claim to have married a woman from the Malhi caste in his village, nor his claim that her family objected to their relationship and did not know about their marriage before they were married. He had not provided detailed information about the circumstances of how her family threatened him and his wife in India, or how they were able to locate them in Australia, or about the detail of the threats he claimed they made to both of them in Australia.
He had not provided detailed information about the circumstances in which he claims his wife left him in Australia or about his claims that he has had no contact with her since that time. He had not provided detailed information to support his claim that when he returned to India he was attacked on two occasions, that he suffered injuries and was hospitalised, nor his claim that he reported one of the attacks to the police. He had not provided any detailed information to support his claims that his wife’s family are powerful and politically connected.
The Tribunal stated that without more evidence from or on behalf of the Applicant than the evidence presently before it, the Tribunal could not be satisfied about why he left India or whether he cannot or will not return to India because he fears harm there, as he claims. The Tribunal said that if the Applicant had attended the hearing, the Tribunal would have had the opportunity to discuss his claims with him in more detail and test their veracity and it would have sought further information from him in relation to the matters the Tribunal raised.
The Tribunal observed that although the Applicant had provided a number of documents, which on their face, support aspects of his claims, it did not have the opportunity to test the credibility of his claims or his reliability as a witness through his participation in a hearing, nor did the Tribunal have the opportunity to ask the Applicant to explain the particular details of what he fears would happen if he returns to India now or in the reasonably foreseeable future and the reasons why it would happen.
The Tribunal found that there was insufficient evidence before it to be satisfied that the events and circumstances the Applicant raised were factual. The Tribunal went through each of the claims of the Applicant, as I have summarised above, and, on the evidence before it, did not accept any of them. On the evidence before it, the Tribunal was not prepared to, and did not, accept that the Applicant was separated from his wife, or that he did not know where she is or what had happened to her. On the evidence before it, the Tribunal did not accept that there was a real chance the Applicant would suffer harm from or on behalf of his wife’s family for reasons of their relationship and marriage, or any related reason, if he returned to India then or in the reasonably foreseeable future.
For the reasons given, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations. The Tribunal affirmed the Delegate’s decision not to grant the Applicant a protection visa.
Application and grounds of review
The Applicant sought review by an application filed in this Court on 29 February 2016. By orders made by the Registrar on 24 March 2016, directions were made for the preparation of the matter for hearing, including that:
The Applicant must file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a Tribunal hearing, by 19 May 2016.
No such affidavit evidence was filed. I am informed by the First Respondent’s solicitor that the Applicant appeared at the directions hearings before the Registrar.
The application advances three purported grounds. They are as follows:
(1)The Tribunal erred in making final decision. The RRT adopted harsh approach to judge the application criteria.
(2)The Tribunal made decision in hurry based on incomplete and unrelated information.
(3)The Tribunal did not provide sufficient opportunity to provide the required information.
The proceeding in this Court
The Applicant appeared before me at the hearing on 23 April 2018 with the benefit of an interpreter. I confirmed with the Applicant that he relied on each of the purported grounds set out in the application.
The Applicant did not file written submissions. When given the opportunity at the hearing to inform me whether he had any documents on which he wished to rely, he handed up a reference dated 28 March 2018 from Greencorp Pty Limited, addressed “to whom it may concern”, which confirmed the Applicant’s employment on a casual basis commencing in January 2010. It commends the Applicant as a valuable asset in any team in which he participates in. Whilst I admitted that reference, I informed the Applicant, and I record, that it does not have relevance to the application before this Court.
The Applicant also referred to a letter dated 29 March 2018 that he had written to the First Respondent’s solicitors, and I received a copy of the letter from them. It is in the nature of a one-page submission. It attests to the Applicant’s employment, payment of taxes and contribution towards superannuation, that the Applicant has not taken sick leave, and is considered a valuable member of his employer’s team. The Applicant submitted that it was his ambition to one day open his own restaurant offering the citizens of Australia a taste of India, and that he is aware it will require a huge investment and not something to undertake lightly. Therefore, he submits, he will continue to save whilst working, and he would be happy to ensure he can continue to support himself.
There was only one statement in the Applicant’s submission which could possibly be directed to s.36(2) criteria (whether under para.36(2)(a) or para.36(2)(aa)), which is as follows:
I am hoping that you will take the above in consideration when reviewing my case. I am very concerned for my safety and wellbeing should I be required to return to India.
The Applicant acknowledged that he had time, and that he did not put anything on before the Delegate or before the Tribunal.
The Applicant submitted to the Court that he was a hard worker and he was honest. He was 24 when he arrived. He is now 34, and he is no longer married. He said that he feared persecution if he goes back to India because when he went to India, they (I assume his in-laws) attacked him. I informed the Applicant that it was not for this Court to assess such matters as his honesty.
When speaking in reply the Applicant said that the first time he went to the Department they repeatedly asked him questions and that he felt tortured, and the second time he did not appear. He said he was scared because he could not answer the questions. When I pressed him when these occasions were, he was confused about details, and could not provide any clear answer. When I took him through the statements in the Tribunal decision, he agreed he did not go to the Tribunal hearing on 10 February 2016, and he agreed that he did not go to the interview before the Delegate on 23 October 2014. The best I can make of the Applicant’s submission is that he may have been referring to some time during the processing of earlier student visa applications, possibly in 2013 or early 2014.
I informed the Applicant that he had had the opportunity to put evidence on in this Court regarding his purported appearance before the Department on previous occasions, and he had not done so. I informed the Applicant that without any supporting evidence about these occasions I could not review the matter further. I informed the Applicant that there was no mention of him going to any interview in any of his grounds of application before this Court. Whether or not the Applicant was asked questions he found difficult to answer in relation to some other visa application does not establish jurisdictional error of the Tribunal in the present case.
Consideration
Ground 1
In relation to ground 1, the First Respondent identified that the Applicant advances two distinct contentions: (i) the Tribunal erred in exercising its discretion to proceed pursuant to s.426A of the Act; and (ii) the Tribunal applied “a harsh approach” to judge the application criteria.
Section 426A confers a discretionary power upon the Tribunal: AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; (2015) 244 FCR 144, per North ACJ at [19]. Although the power so conferred must be exercised reasonably, and cannot be exercised capriciously, the election to proceed to decide the review is not by itself an expression of an unreasonable exercise of the power: Kaur v Minister for Immigration and Border Protection [2016] FCA 132; (2016) 245 FCR 296, per Perry J at [17].
There are two conditions to be met in order for the Tribunal to exercise its discretion pursuant to s.426A of the Act: first, the Tribunal must invite the Applicant to appear at a hearing before it pursuant to s.425 of the Act; and secondly, the Applicant must fail to appear.
The above conditions are met in the present case. In relation to the first condition, as I have noted, the Applicant was invited to appear at a hearing by letter dated 21 December 2015, communicated by way of email sent to the email address for correspondence identified in the Applicant’s application for review. That invitation complied with the requirements of s.425A of the Act, and I note that the invitation was issued approximately six weeks prior to the hearing date. The notice of invitation to appear contained a statement of the effect of s.426A, as I have set out above, and thus complied with the requirements of sub‑s.425A(4).
I note that the email address for the Applicant to which the Tribunal hearing invitation was sent is the same email address the Applicant has indicated as his email address in his application to this Court. It is also the same email address to which the decision of the Tribunal was emailed on 11 February 2016. The Applicant has not made any submissions, or adduced any evidence, that he did not receive the information in the Tribunal’s hearing invitation letter.
In all the circumstances of this case I find that, the Tribunal’s decision to proceed under s.426A of the Act was not unreasonable. The Tribunal elected to exercise its power to proceed in the absence of the Applicant, in circumstances where the Applicant had been properly invited to attend the Tribunal hearing. By virtue of the hearing invitation, the Applicant was on notice of the consequences should he fail to attend the hearing.
The Applicant did not engage with the Tribunal’s process beyond the filing of his application for review. So too, he did not engage with the process before the Delegate beyond the filing of his application for a protection Visa. The Tribunal’s decision is within the area of decisional freedom as expressed by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28].
In relation to the second contention within ground 1, that the Tribunal was “too harsh” in its approach, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an Applicant, nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not made out: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J); Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 (Kirby J); Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 (Wilcox J).
It was for the Applicant to satisfy the Tribunal that his claims were made out. The Tribunal did not unthinkingly reject the claims out of hand. Rather, the Tribunal was faced with the circumstance that, because of a paucity of information before it, the Tribunal could not be satisfied that the Applicant would fear harm. It said that it did not have enough information to be satisfied that the protection criteria of the Act was made out. It was open to the Tribunal to reach that conclusion.
In light of the paucity of the evidence before it, and noting the matters the Tribunal identified that it had wished to ask the Applicant about and get more information from him, there is no error apparent in the Tribunal being unable to accept the Applicant’s claims. No jurisdictional error is established on ground 1.
Ground 2
Ground 2 appears to cover similar ground to ground 1.
To the extent that the ground asserts that the Tribunal had before it “incomplete and unrelated information”, that was a matter for the Applicant to remedy by attending a Tribunal hearing and putting information before the Tribunal substantiating his claims. The Applicant’s contention is also contrary to the fact the Applicant did not attend the Tribunal hearing. He did not take up the invitation to attend. The Tribunal proceeded to make its decision on the evidence before it, in an orderly way, having given the Applicant the opportunity to appear, and that opportunity having passed by the effluxion of time. Given the circumstances of the communications being sent to the Applicant that I have referred to above, the Tribunal’s decision to proceed to make its decision pursuant to s.426A of the Act was not unreasonable.
Given the Applicant’s non-appearance, for the same reasons I have concluded that no jurisdictional error is establishes on ground 1, ground 2 is not made out.
Ground 3
I understand the statement in ground 3, “provide sufficient opportunity to provide the required information”, to be a complaint about lack of procedural fairness. I read ground 3 as a contention that the Tribunal did not afford the Applicant procedural fairness in the conduct of its review. Section 422B of the Act prescribes that Division 4 of Part 7 of the Act is an exhaustive statement of the requirements that procedural fairness be afforded to the Applicant in relation to the matters specified in Division 4 of Part 7 of the Act. It is clear that the Tribunal wrote to the Applicant and invited him to attend a hearing pursuant to s.425 of the Act, and that the hearing invitation complied with s.425A of the Act.
There is nothing in evidence before me to suggest that the Applicant was not afforded procedural fairness. It was for the Applicant to avail himself of the opportunity extended to him to attend the hearing, and to provide evidence and make submissions. He did not do so, and he did not provide an explanation at the time of any inability to do so. In these circumstances, and in the absence of any further particularisation of the grounds, I do not find any want of procedural fairness. Ground 3 is not made out.
Additional matter – s.438 certificate
The First Respondent has raised one other matter. There was a certificate issued under s.438 of the Act by a delegate of the First Respondent contained in the Department’s files relating to the Applicant’s application for Visa. I gave leave at the hearing for the First Respondent to read an affidavit to which a copy of the certificate was annexed and to which redacted copies of the documents referred to were exhibited. The documents referred to in the certificate are emails, administrative documents of the (now) Department of Home Affairs, and Departmental records relating to a visa application made by the Applicant’s ex-wife. Third party identifying information has been redacted. That information identified the ex-wife’s subsequent husband. The First Respondent made no claim for privilege over the documents, and did not seek any orders for confidentiality. A copy of the redacted material was served on the Applicant. I have considered the material.
Section 438 of the Act is as follows:
(1)This section applies to a document or information if:
(a)the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
There is no evidence that the Applicant was informed in any way about the certificate or the documents the subject of the certificate. This is not surprising, as the Applicant did not attend the Tribunal hearing. In these circumstances, it is necessary to consider whether the Tribunal fell into jurisdictional error because there was no disclosure of the certificate or the notification of any information in the documents to the Applicant.
I thus must consider the issue whether the Applicant was denied procedural fairness and/or the Tribunal followed a procedure contrary to law as considered by Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1. I note that in MZAFZ the documents were not before the Court, and the question for the Court was whether the certificate was valid.
The First Respondent submitted that the Tribunal was required to follow the principles as set out in MZAFZ at [60], namely, it was required to:
(a)disclose the existence of the certificate;
(b)afford the Applicant an opportunity to make submissions on the validity of the certificate;
(c)afford the Applicant an opportunity to at least make submissions on the Tribunal’s approach under para.438(3)(a);
(d)afford the Applicant an opportunity to seek a favourable exercise of the Tribunal’s power under para.438(3)(b); and
(e)disclose to the Applicant any matter contained in the document or the information.
In its written submissions, the First Respondent submitted that the non‑disclosure certificate in the present case was validly issued. I accept that submission. In general terms the documents relate to a student visa application made by the Applicant’s former wife. The certificate claimed that disclosure was contrary to the public interest because the document contains information affecting personal privacy. As I have said, the documents that are the subject of the certificate are in evidence. They are of relevance, at the least, to the question of the Applicant’s difficulties with his marriage and its ending.
The documents reveal that the Applicant’s former wife suffered the loss of her father shortly after her arrival in Australia which, together with an accident suffered by her mother, led to the wife’s depression. They confirm that the Applicant and his former wife’s relationship did not work out because of their personal and family problems, miscommunications, and different ideology, which “ultimately led [her] for a divorce”. In October 2012 she had remarried.
The documents are supportive of difficulties that the Applicant had with his marriage (although they are neutral as to whether any difficulties were for the reasons claimed by the Applicant) and that the marriage has ended. The documents do not, however, address the questions the Tribunal wished to raise with the Applicant as to the likelihood of harm should he return to India now or in the foreseeable future.
I note that the documents would have enabled the Tribunal to accept the Applicant’s claim to be separated from his wife (which factual claim the Tribunal did not accept – see at [14]). Whether or not the Applicant was separated from his wife, and whether or not she had remarried, however, the Tribunal remained faced with a lack of opportunity to ask the Applicant to explain the particular details of what he fears would happen if he returns to India now or in the reasonably foreseeable future and the reasons why it would happen. The Applicant was also on notice by the letter dated 21 December 2015 that the Tribunal was unable to make a favourable decision on the information before it.
The Tribunal in its decision is silent as to whether it had regard to the material the subject of the s.438 certificate. It does not say whether it had any regard to the Departmental file, although it mentions the invitation to the Applicant dated 21 December 2015 in which the Tribunal had advised that it “had considered all the material before it” (see decision at [8], discussed above at [15]). Given that the Tribunal did not accept the Applicant’s claim to be separated from his wife, however, I infer that the Tribunal did not base any of its findings on the documents or information contained in them. Moreover, the documents contain nothing which was capable of affecting the Tribunal’s analysis of whether the Applicant was a person in respect of whom Australia has protection obligations.
I am unable to find that the information covered by the s.438 certificate is of adverse relevance to the Tribunal’s reasons for decision. Even if I am wrong and the Tribunal had regard to the material the subject of the certificate, it can be inferred that there was nothing in the material the subject of the certificate, that was considered adverse by the Tribunal to the decision to be made, such as to indicate that the Applicant was denied any opportunity that might have affected the outcome of the review. In particular, it may be inferred that there was nothing adverse to the Applicant such as to give rise to an obligation on the Tribunal to consider whether it ought to have made a disclosure under s.424A or s.424AA of the Act, or whether disclosure should be made as part of its disclosure under s425 or pursuant to s.427(1)(c) of the Act: see AGY16 & Anor v Minister for Immigration & Anor [2017] FCCA 1897 at [37], and cf MZAFZ at [40]-[43]; see also BGE15 v Minister for Immigration and Border Protection & Anor [2017] FCAFC 198.
As was the situation in AGY16, so too in the present case, there is no lack of procedural fairness in the Tribunal’s decision to not disclose the certificate (if it made such a decision) or notify the Applicant of the documents or information conveyed by the certificate in circumstances where the Applicant failed to attend the hearing. The Tribunal had no opportunity at the hearing to inform the Applicant of the existence of the certificate or notification. There is no basis, on the facts of this case, to suggest the Tribunal ought to have delayed its decision in order to attempt to inform the Applicant in relation to the certificate. As the Applicant has acknowledged, he did not turn up for the Delegate’s interview, nor did he appear at the Tribunal hearing. Further, as her Honour Judge Barnes concluded in AGY16 at [42]:
If, despite the nature of the documents and the absence of any denial of procedural fairness, there was a technical jurisdictional error in the Tribunal’s failure to disclose the fact of the certificate to the Applicants (see MZAFZ at [65]), I would refuse relief in the exercise of my discretion... Knowledge of the existence of the certificate could not have made or make any difference to the outcome of the review (on either a backward or forward looking view of the exercise of the discretion), in the sense discussed by Judge Smith in BEG15 at [68]. As Barker J stated in AVO15 at [91]:
To the extent that there may have been some technical breach of the disclosure obligations arising under the Act, I do not consider that the Applicant lost any opportunity to advance his case by reason thereof. No detriment is shown. No practical injustice is, on any view identified. (Citations omitted)
No practical injustice is apparent, whether or not the certificate is valid. There is no utility in granting the relief sought in these circumstances. Accordingly, the application should be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 17 May 2018
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