ALF16 v Minister for Immigration
[2018] FCCA 1596
•22 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALF16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1596 |
| Catchwords: MIGRATION – Application for judicial review of an Administrative Appeals Tribunal (“the Tribunal”) decision affirming a decision of a delegate of the Minister refusing to grant the applicant a Protection (Class XA) visa – the Minister issued two certificates under s.438 of the Migration Act 1958 (“the Act”) – the Tribunal did not disclose the existence of the certificates to applicant, but disclosed the information covered by the certificates under ss.424A and 424AA of the Act to the applicant – applicant invited to respond to information and did not respond – whether applicant was denied procedural fairness because he was denied the opportunity under s.438(3)(b) of the Act to request the Tribunal to disclose the source of the information – if the applicant lost this opportunity, whether he was deprived the possibility of a successful outcome – held applicant was not denied the opportunity under s.438(3)(b) of the Act to request the Tribunal to disclose the source of the information – held that if he was denied such an opportunity, he was not deprived of the possibility of a successful outcome – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 422B(2), 424A, 424AA, 429, 438, 440 |
| Cases cited: Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 |
| Applicant: | ALF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 468 of 2016 |
| Judgment of: | Judge Jones |
| Hearing dates: | 22 September 2017 and 7 March 2018 |
| Date of Last Submission: | 7 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 22 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | WLW Migration Lawyers |
| Counsel for the Respondents: | Mr Yuile |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Applicant’s Amended Application filed on 8 September 2017 be dismissed.
The Applicant pay the First Respondent’s costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 468 of 2016
| ALF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 25 February 2016 affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 6 October 2014, refusing to grant the Applicant a Protection (Class XA) visa (“the visa”).
The central issues for determination in this decision arise out of the fact that two certificates were issued pursuant to s.438 of the Migration Act 1958 (Cth) (“the Act”); the first on 6 October 2014 (“the October 2014 certificate”), and the second on 10 December 2014 (“the December 2014 certificate”).
The Applicant, who claims to have been born in a small village in Nepal, claimed to fear persecution and/or significant harm if returned to Nepal from the Moubadi or Maoist group.
The Applicant does not dispute the substantive findings of the Tribunal in rejecting his claims for protection. The Applicant’s sole ground of judicial review is:[1]
1. The decision of the Tribunal was procedurally unfair, in that it did not disclose to the applicant the existence of certificates under s 438 of the Migration Act 1958 (Cth).
(Underlining omitted)
[1] The Applicant’s Amended Application filed on 8 September 2017.
There is no dispute that the Tribunal failed to disclose the existence of the October 2014 and the December 2014 certificates to the Applicant.
In his written submissions, the Applicant’s arguments included the following:[2]
a)that three of the annexures/exhibits to the affidavit of Michelle Elizabeth Stone filed on 17 August 2017 (“the Stone affidavit”), two of which contained redacted copies of documents from folios that were subject to the certificates (Exhibits MES-1 and MES-2), were not admissible.[3] The Applicant did not object to the admission into evidence of copies of the October 2014 and December 2014 certificates; and
b)the October 2014 and the December 2014 certificates were invalid.
[2] The Applicant’s Submissions filed on 8 September 2017.
[3] Annexure C to the Stone affidavit (the remaining annexure that the Applicant objected to admission into evidence) comprised of email correspondence between the Department of Immigration and Border Protection and the Tribunal regarding the certificates.
During the course of the hearing on 22 September 2017, both Counsel for the Applicant and Counsel for the Minister drew the Court’s attention to appeals which were before the Full Court regarding the admissibility of documents subject to certificates issued under s.438 of the Act in judicial review proceedings in this Court. The hearing of the present application was adjourned part-heard until after the delivery of judgment in those appeals.
On 29 November 2017, the decisions in Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16”), Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (“CQZ15”) and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 (“BEG15”) were delivered.
The leading decisions in CQZ15 and BJN16 held that documents containing information subject to a notification under s.438(2) of the Act were admissible as evidence in judicial review proceedings, either to establish that there had been no denial of procedural fairness, or to show that relief should be denied in the exercise of the Court’s discretion.
An affidavit of Lynn Moore was filed on 17 October 2017, which deposed to the basis upon which the Minister claimed public interest immunity in relation to the release of the redacted information in the documents comprising exhibits MES-1 and MES-2 to the Stone affidavit.
At the resumed hearing on 7 March 2018, Counsel for the Applicant accepted the claim for public interest immunity in relation to the redaction of the documents comprising exhibits MES-1 and MES-2 to the Stone affidavit. Accordingly, the Applicant and the Minister agreed on the following:
a)the Tribunal did not disclose to the Applicant the existence of the October 2014 and the December 2014 certificates;
b)the October 2014 and the December 2014 certificates were valid; and
c)the Stone affidavit, including exhibits MES-1 and MES-2 in their redacted form, were admissible as evidence in the present proceedings.
The Stone affidavit, together with its annexures, was read into evidence. The affidavit of the Applicant filed on 19 September 2017 was also read into evidence.
Background and the Tribunal’s decision
The Applicant sought a protection visa by application dated
5 August 2013 (CB 1-35).
A delegate of the Minister refused to grant the Applicant the visa on
6 October 2014 (CB 107-126).
On the same day, a different delegate of the Minister issued the October 2014 certificate.
The Applicant applied for a review of the delegate’s decision by the Tribunal on 15 October 2014 (CB 132-144).
On 10 December 2014, a delegate of the Minister issued the December 2014 certificate.
The Applicant was invited to attend a hearing before the Tribunal on
10 December 2015 (CB 199). Prior to the hearing, the Applicant’s then migration agent informed the Tribunal that they no longer held instructions to act on behalf of the Applicant, and would not be attending the hearing (CB 206). The Applicant attended the hearing supported by a “community support person”, and was assisted by an interpreter in the English and Nepali languages (CB 208-209).
The Tribunal set out the Applicant’s claims in its decision record, which were, in summary (CB 259-260 at [21]-[26]):
a)the Applicant was 19 years old, and was born in a small village in the Bardiya district of Nepal;
b)the Applicant married his wife on 31 December 2010. The Applicant’s wife, three-year-old son, mother, three brothers and one sister still resided in Nepal. He claimed that his father and one brother were deceased;
c)the Applicant only completed half a year of basic education, and had been employed on a casual basis in Nepal collecting stones from the river, and selling them for construction;
d)in December 2012, he travelled from Nepal to India by train, then travelled to Australia by boat from India in January 2013; and
e)the Moubadi (Maoist) group lived in the jungle, and would frequently come to his village to recruit young people to be involved in their activities. The Moubadi would also frequently come to his home, and on one occasion, they told him that if he did not join their group, they would not leave him alive. He claimed that the Moubadi came on second occasion, and started beating him. They took him into the jungle, and repeatedly beat him. He suffered injuries, fell unconscious, and believes that they must have dumped his body and left him for dead. The Applicant claimed his mother found him and took him home. He was encouraged by his mother to leave Nepal.
Relevantly, the Tribunal noted the following (CB 260 at [31]):
31. Contained on the departmental file is an anonymous allegation received by the Department in March 2014 stating that the applicant’s family owned large amounts of assets in Nepal, including property and factories. It was alleged that the applicant had made fraudulent asylum claims so that his family could fast track their immigration to Australia and avoid paying large fees to migrate as either students or through business. It was further alleged that the applicant had lied about his real age in order to receive the full benefits allowed for under-aged [unauthorised maritime arrivals].
The Tribunal then set out, in some detail, the evidence given by the Applicant at an interview with a delegate on 17 September 2014
(CB 260-261 at [32]-[41]).
Under the heading “Review Application”, the Tribunal noted the following (CB 262 at [43]):
43. In December 2014, the Tribunal received notice of an allegation made about the applicant to the Department by telephone in November 2014. The allegation indicated that the applicant was not a refugee and came from a very wealthy and politically connected family which owned businesses. The source alleged that the applicant and his wife were under age when she became pregnant and the applicant had to leave because this would bring shame on his family in light of their connections.
The Tribunal stated that in April 2015, it received an additional statutory declaration made by the Applicant on 21 April 2015
(CB 188-195). The Tribunal noted that “the statutory declaration is in the English language and does not on its face indicate that it had been prepared with the assistance of an interpreter” (CB 262 at [44]). The Tribunal then set out the claims in the Applicant’s statutory declaration, which were, in summary:
a)after his mother found him in the jungle, the Applicant was kept in a secret area of the house. He estimated that he remained in hiding up to two years;
b)the Applicant was married whilst he was in hiding, although there was no marriage ceremony. He had grown up with his wife, and she knew that he was in hiding, and would visit him. A few of his closest relatives and friends knew that the Applicant was in hiding, but most of the community thought that he had been killed by the Maoists;
c)when the Applicant boarded the boat, there were very few people, and he was sick from smoke made by the boat. The Applicant fell asleep, and when he awoke, there was far more people in the boat;
d)the Applicant was 17 years old when he arrived in Australia. He married when he was 15 years old; and
e)the Applicant had learned English after arriving in Australia. Prior to his arrival, he had no understanding of English, and only spoke Nepalese. The Applicant denied having attended high school, or having any formal education in Nepal. When the Applicant lived in a rural community in Nepal, he went to a non-formal education centre, where he learnt the 26 letters of the English alphabet, and Nepalese language and writing. As the Applicant was unable to use his fingerprint as a signature, he practised his signature.
Under the heading “Tribunal hearing”, the Tribunal set out, in some detail, the questions asked by the Tribunal Member, and the evidence given by the Applicant (CB 263-268). Relevantly, the Tribunal stated (CB 267 at [74]):
74. The Tribunal put to the applicant information which it considered would be a part of the reason for affirming the decision to refuse to grant him a protection visa. The Tribunal explained that the applicant could seek additional time in which to comment on or respond to the information. The Tribunal put to the applicant particulars of the two allegations made to the Department referred to above and explained that they were relevant to the review because they cast some doubt upon the truthfulness of his claims with regard to his circumstances in Nepal. The Tribunal explained that if it relied on information, it may as a consequence not be satisfied that the applicant had presented truthful evidence and may not be satisfied that the applicant faced a real chance or risk of suffering serious or significant harm in Nepal. The applicant indicated that he understood the information and wished to respond immediately, although later the applicant asked for the information to be put to him in writing.
Following the hearing, the Tribunal wrote to the Applicant pursuant to s.424A of the Act (CB 214-216). The Tribunal’s s.424A letter dated
14 December 2015 (“the s.424A letter”) set out the information put to the Applicant at the hearing, and was titled (in bold font and capital letters), “[i]nvitation to comment on or respond to information”. The correspondence commenced with the following statement (CB 214):
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
(Emphasis in original)
The s.424A letter included information contained in the two allegations which the Tribunal referred to at the hearing, as well as other matters. In the s.424A letter, the Tribunal described the particulars of the information contained in the two allegations as follows (CB 214):
1. In March 2014, the Department received an anonymous allegation that your family owned large amounts of assets in Nepal, including property and factories. It was alleged that you had made fraudulent asylum claims so that your family could fast track their immigration to Australia and avoid paying large fees to migrate as either students or through business. It was further alleged that you had lied about your real age in order to receive the full benefits allowed for under aged Unauthorised Maritime Arrivals.
In November 2014, the Department received allegation that you were not a refugee and came from a very wealthy and politically connected family which owned businesses. It was alleged that you and your wife were under age when she became pregnant and you had to leave because this brought shame on your family in light of their connections.
This information is relevant to the review because it casts doubt over the genuineness of your claims about your personal circumstances in Nepal. If the Tribunal relies on the information, it may not be satisfied that your identity and personal circumstances in Nepal are as claimed…
On the same day, the Tribunal issued a written direction under s.440(1) of the Act. The direction was attached to the s.424A letter, and stated (CB 217):
Being satisfied that it is in the public interest, the Tribunal, pursuant to s.440(1) of the Migration Act 1958, directs that the evidence and information given to the Tribunal at folio (omitted) of AAT file (omitted) and folios (omitted) of departmental file (omitted) (both sides) must not be published or otherwise disclosed except for the purposes of, or in connection with the present review application.
On 21 January 2016, the Asylum Seeker Resource Centre (“ASRC”) informed the Tribunal that it was providing the Applicant “with limited pro bono assistance to advise him on how to respond to the Tribunal’s invitation to comment or respond to information of 14 December 2015” (CB 225-226). This correspondence enclosed a request for access to documents under the Freedom of Information Act 1982 (Cth). The requested documents identified were records of the Applicant’s screening interviews, entry interviews, biodata interviews, and age assessment interviews from his Departmental file (CB 227).
On 15 February 2016, the Applicant provided his response to the s.424A letter in the form of a statutory declaration (CB 235-241). The Applicant addressed the allegations in his statutory declaration as follows:
March 2014 anonymous allegation – Avoiding visa fees
3. I understand that the Department of Immigration and Border Protection (Department) received an anonymous allegation in March 2014 that I am from a wealthy family that owned a large number of assets in Nepal, including property and factories. I understand that it was alleged that I have made fraudulent claims in order to avoid the fees involved with an Australian business or student visa and to receive unspecified benefits as an Unauthorised Maritime Arrival.
4. It is very difficult for me to respond to these allegations as I do not know the source and exact details of the information received by the Department. I request that as the allegations are anonymous, that no weight be given to them.
…
March 2014 anonymous allegation – Age
7. I understand that the anonymous allegation received by the Department in March 2014 also alleged that my age on arrival was 22 years.
8. Again, it is very difficult for me to respond to these allegations as I do not know the source and exact details of the information received by the Department. I request that as the allegations are anonymous, that no weight be given to them.
…
November 2014 anonymous allegation – Wife and child
12. I understand that the Department received an anonymous allegation in November 2014 that I come from a wealthy and politically connected family which owned businesses. I understand that it was also alleged that my wife and I were under-age when she became pregnant and that I had to leave Nepal because of the shame that this brought on my family, due to their connections.
13. Again, it is very difficult for me to respond to these allegations as I do not know the source and exact details of the information received by the Department. I request that as the allegations are anonymous, that no weight be given to them.
In its decision record under the heading “[f]indings”, the Tribunal referred to opinions provided by a psychiatrist. The Tribunal stated that it accepted that the opinions expressed by the psychiatrist “provide a possible explanation for many of the difficulties the Tribunal has with the [A]pplicant’s evidence” (CB 270 at [92]).
The Tribunal then set out its findings, describing the Applicant’s evidence with regard to his personal circumstances in Nepal as “unusually opaque” (CB 270 at [93]). The Tribunal further stated that “[a]spects of the [A]pplicant’s claims were vague and lacking in detail or appeared implausible” (CB 71 at [96]). The Tribunal found that the Applicant’s account of how his mother found him in the jungle, and brought him home, was “unconvincing” (CB 271 at [97]). The Tribunal further found that the Applicant’s “claims that he remained in hiding in his home for up to two years and that the Maoists and the [A]pplicant’s fellow villagers thought he was dead to be highly dubious”
(CB 271 at [98]). The Tribunal said that the Applicant’s evidence with regard to his journey to Australia was “equally troubling” (CB 271
at [99]). The Tribunal further stated that (CB 271 at [100]):
100. The Tribunal continues to have difficulty reconciling the applicant’s evidence regarding his lack of education with his competence in the English language at the time of his Departmental interview and the level of sophistication with which he expressed himself in his written statements and at the Tribunal hearing….
In respect of the anonymous allegations received by the Department, the Tribunal said (CB 271 at [101]):
101. Against this background are the two allegations received by the Department. The Tribunal does not have before it any information regarding the source of the allegations and is unable to verify them. For this reason, the Tribunal considers that it would be unsafe to accord them any weight. However, the Tribunal notes that in the context of the credibility concerns outlined above, particularly, as regards the applicant’s identity and personal circumstances, if accepted, they would provide a plausible alternative explanation for the deficiencies in the applicant’s evidence.
The Tribunal said with respect to the Applicant’s claims
(CB 272 at [103]):
103. For the reasons given above, the Tribunal is not satisfied that the applicant originates from a small village in the Bardiya district in Nepal. The Tribunal is not satisfied that the applicant received no formal education in Nepal. The Tribunal is also not satisfied that the applicant has never been issued with any identification documentation including a passport for travel outside of Nepal. The Tribunal is not satisfied that the applicant was ever approached by members of a Maoist group. The Tribunal is not satisfied that the applicant was ever abducted and beaten by members of a Maoist group. The Tribunal is not satisfied that the applicant remained in hiding for a period of 18 months to 2 years before departing Nepal by train to India.
The Tribunal found that the Applicant did not meet the refugee criterion under s.36(2)(a) of the Act, nor was it satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act (CB 272 at [105]-[106]).
Judicial review
In addition to the principle that the contents of documents subject to certificates notified under s.438 of the Act are admissible in judicial review proceedings, the Full Courts in CQZ15 and BJN16 stated that a tribunal’s failure to disclose the existence of such certificates may give rise to a denial of procedural fairness. In CQZ15, the Full Court said
(at [67]-[68]):
67. Wherever there is an issue as to whether there has been a breach of procedural fairness of the kind alleged in Lam and in this case, the complainant must establish a loss of opportunity to advance his or her case, and whether he or she will succeed in this usually depends on the circumstances of the case.
68. It may be accepted that the non-disclosure by the Tribunal of the existence of a notification under s 438(2) of the Act may give rise to a denial of procedural fairness, as decided in MZAFZ. The Minister did not contend to the contrary. It does not, however, follow that the non-disclosure of such a notification will always give rise to a denial of procedural fairness. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the non-disclosure to be examined.
The Full Court further said (CQZ15 at [70]): [4]
70. Reference was also made by CQZ15 at the hearing of the appeal to the comments of Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55] that ‘[t]he concern of procedural fairness ... is with procedures rather than outcomes” and to their dictum at [60] that “denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.”
[4] See also Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 at [63]-[64].
The Applicant’s submissions
The Applicant’s sole ground of judicial review is that the decision of the Tribunal was procedurally unfair, because the Tribunal failed to disclose the existence of the October 2014 and December 2014 certificates. This ground appears to be precisely the circumstances considered by the Full Courts in CQZ15 and BJN16. Accordingly, one would expect that the principles regarding procedural fairness distilled in those decisions would apply in these proceedings. However, Counsel for the Applicant did not refer to, nor rely on, these decisions. Indeed (at least initially), Counsel for the Applicant submitted that the notion of “practical injustice” had no part to play in the Court’s consideration. Rather, Counsel for the Applicant argued that the focus of the Court must be only on the Applicant’s “lost opportunity” during the process of the Tribunal review. However, in submissions-in-reply, Counsel for the Applicant clarified, by reference to the decision in Minister for Immigration and Border Protection v WZARH [2015] HCA 40 (“WZARH”), that in particular statutory regimes, practical injustice (the touchstone of procedural fairness) arises from the loss of an opportunity contemplated by that statutory regime.
As I understand it, the Applicant’s submission (as developed by Counsel for the Applicant) is that the Applicant was denied his right to be given the opportunity to make a request to the Tribunal under s.438(3)(b) of the Act that it disclose the source of the information contained in the documents covered by the October 2014 and December 2014 certificates. Counsel for the Applicant argued that this lost opportunity resulted in the Applicant being denied procedural fairness during the merits review process, giving rise to jurisdictional error. Counsel for the Applicant argued that this is because the Court cannot be satisfied that the Applicant did not lose the possibility of success through the Applicant’s loss of opportunity to make the request. Counsel for the Applicant asserted that this defeats any submission made by the Minister that no practical injustice would result from the failure of the Tribunal to disclose the existence of the certificates.
Section 438 of the Act is found in div.7, pt.7 of the Act, which is titled “reviewable decisions – miscellaneous”. Section 438 of the Act provides as follows:
438 Tribunal’s discretion in relation to disclosure of certain information etc.
(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.
Section 440 of the Act then sets out the directions that the Tribunal may issue in compliance with s.438(4) of the Act.
Counsel for the Applicant argued that under the regime established by s.438 of the Act, applicants have a right to request a tribunal on review for the identity of an informant, and enjoy the possibility of success in that respect. Counsel for the Applicant argued that this right arises from:
a)the use of the word “any” in the phrase contained in s.438(3)(b) of the Act (set out at [39] above);
b)Parliament’s inclusion of s.440 of the Act, under which a tribunal may issue directions that any information subject to public interest immunity be confined in its distribution to the Applicant; and
c)by reference to s.429 of the Act, which requires that hearing of an application for a review in relation to protection visas be held in private.
Thus, Counsel for the Applicant submitted that it can be said that:[5]
…as a question of policy that parliament has chosen, in certain circumstances, perhaps given the stakes, to allow a tribunal to puncture through public interest immunity in specific circumstances for the benefit of an applicant but creates an envelope around that which protects the broader disclosure of information.
[5] Transcript of the hearing on 7 March 2018, p.11, l.27-31.
Counsel for the Applicant argued that the Applicant was denied his right to request the Tribunal to waive the public interest immunity in relation to the identity of the informant, because of the procedure that the Tribunal adopted in exercising its discretion under s.438(3)(b) of the Act. Counsel for the Applicant argued that:
a)at the Tribunal hearing, the Tribunal put information to the Applicant which it considered would be a part of the reason for affirming the decision to refuse to grant him the visa, and stated that the information was relevant to the review because the information cast some doubt upon the truthfulness of his claims with regard to his circumstances in Nepal (CB 267 at [74], extracted in full at [24] above); and
b)following the Applicant’s request at the Tribunal hearing to have the information in writing, following the hearing the Tribunal wrote to the Applicant pursuant to s.424A of the Act. The s.424A letter set out the particulars of the information, and again repeated that the information was relevant to the review because it casted doubt over the genuineness of the Applicant’s claims (extracted at [26] above).
Counsel for the Applicant accepted that in the Applicant’s statutory declaration (CB 236-237 at [4]-[6], [12]-[13]), the Applicant says that it is very difficult for him to respond because he does not know the source or the exact details of the information. However, Counsel for the Applicant argued that by issuing a direction under s.440 of the Act at the same time as the correspondence under s.424A of the Act, the Tribunal had already determined that it would not waive the public interest immunity without allowing the Applicant the right to request the Tribunal to disclose the source of the information. Thus, Counsel for the Applicant argued that the Tribunal had foreclosed any possibility that the Applicant’s lost opportunity during the hearing was not, in reality, a lost opportunity to request the disclosure of the source.
Counsel for the Applicant submitted that in other cases where an applicant was denied the right to request a waiver of the public interest immunity attaching to a certificate notified under s.438 of the Act, it would be open to the Minister to show that the identity of the informant was irrelevant; either because of the content of the document, or because the allegation was disproven by other means, or because the Applicant knew the identity anyway, or had deduced it from some other circumstance.
Counsel for the Applicant submitted that these arguments are not open to the Minister in the present case, given the nature of the allegations, and the fact that in his statutory declaration the Applicant made it clear that he did not know the identity of the source.
In his submissions-in-reply, Counsel for the Applicant returned to his primary submissions. Counsel for the Applicant relied on the High Court’s decision in WZRAH for the following submissions:[6]
[Counsel for the Applicant]: In statutory regimes like this one where Parliament has specified the procedure, the applicant will show a loss of an opportunity if they show that some procedural right that was contemplated by the statute was not afforded to them. Here, the applicant – and it appears largely unchallenged, but the applicant didn’t get an opportunity to make submissions about the extent of waiver. So we say, at that point, he has done enough to demonstrate to your Honour that he has lost an opportunity contemplated by the Act.
Now, the Minister, then, picks up the running and has the onus to show… in reality, no such opportunity [was lost] because either there was nothing he could have said about it, or that the outcome was foreclosed in any event, so he – he has never lost, or that he – even though in terms or in form didn’t get the opportunity, in substance, he did elsewhere. So in reality, there was no loss of that opportunity that the statute contemplated he should have. And that’s the Minister’s onus to prove, because it works at the level of your Honour’s discretion.
[6] Ibid, p.28, l.1-16.
Although Counsel for the Applicant’s submission centred around the right of an applicant to request a tribunal to waive public interest immunity regarding the source of the information subject to certificates notified under s.438 of the Act, Counsel also developed an argument regarding the extent of the redactions of parts of the documents that were the subject of the October 2014 certificate. Having taken the Court to the redactions of parts of three documents in exhibit MES-1 to the Stone affidavit, Counsel for the Applicant described the redactions as “quite substantial”. Counsel for the Applicant then submitted that because of the volume of the redactions, the Court cannot be confident that the redactions were confined only to protect the anonymity of the source. Accordingly, Counsel for the Applicant submitted that this is a further reason why the Court cannot be satisfied with sufficient clarity that the Applicant did not lose even a mere possibility of success.
The Court put to Counsel for the Applicant that this proposition sat uncomfortably with the Applicant’s acceptance of the redactions contained in the exhibit MES-1 to the Stone affidavit. In response, Counsel for the Applicant submitted that the answer was that whilst the Court does not have power to waive public community, the Tribunal does have that power due to the operation of s.438(3)(b) of the Act.
With respect to the Minister’s submission that the Tribunal expressly disavowed any reliance on the information that it had provided, Counsel for the Applicant made two arguments.
Firstly, Counsel for the Applicant argued that “[p]rocedural unfairness works at an antecedent stage. It has normative functions. It is not concerned with merits or outcome or quality of decision making; it’s concerned with process”.[7] In support of this proposition, Counsel for the Applicant relied on the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 (“VEAL”). In particular, Counsel for the Applicant relied on the following extracts of the decision in VEAL (at [14]-[16]):
14. In the courts below much emphasis was given to the Tribunal’s statement, in its reasons, that it gave no weight to the letter or its contents. This statement was treated as inviting two questions: was the statement to be taken at face value and, if it was, could the letter nonetheless have had some influence upon the outcome of the matter? As these reasons will show, it is not useful to begin the inquiry about procedural fairness by looking to what the Tribunal said in its reasons. Rather, as procedural fairness is directed to the obligation to give the appellant a fair hearing, it is necessary to begin by looking at what procedural fairness required the Tribunal to do in the course of conducting its review.
15. (Referring to Kioa v West (1985) 159 CLR 550 at 629) …the second proposition was that “[i]nformation of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information”…
16. …Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision‑maker must do in the course of deciding how the particular power given to the decision‑maker is to be exercised. They are to be applied to the processes by which a decision will be reached.
[7] Transcript of hearing on 7 March 2018, p.14, l.13-15.
Counsel for the Applicant argued that in the present case, the Applicant was denied procedural fairness because he was not given an opportunity to request the disclosure of the source of the information under s.438(3)(b) of the Act, prior to the Tribunal disclosing to him the particulars of the information at the hearing, and later in written correspondence after the hearing.
Secondly, in response to the Minister’s submission that no practical injustice resulted because the Tribunal ultimately did not rely on the information that was the subject of the certificates, Counsel for the Applicant argued that the Tribunal’s statement in its decision record that “it would be unsafe to accord them any weight” must be read in the context of the next sentence of the paragraph. Following this statement, the Tribunal said (CB 271 at [101], extracted in full at [32] above):
101. …However, the Tribunal notes that in the context of the credibility concerns outlined above, particularly, as regards the applicant’s identity and personal circumstances, if accepted, they would provide a plausible alternative explanation for the deficiencies in the applicant’s evidence.
Counsel for the Applicant submitted that this statement, together with the information put to the Applicant under cover of ss.424A and 424AA of the Act, indicates that the Tribunal had in fact had an intellectual engagement with the content of those allegations, because it had formed a view that, in the context of all its concerns about the credibility of the Applicant’s evidence, this information may provide a “plausible alternative explanation”.
The Minister’s submissions
Counsel for the Minister commenced by addressing the issue raised by Counsel for the Applicant regarding the redactions of parts of the documents contained in exhibits MES-1 and MES-2 to the Stone affidavit. Counsel for the Minister submitted that when careful regard is had to the content of the documents, it is clear that although the context or format in which the redactions appear in the three documents varies, the redactions of the particular paragraphs are the same. I agree with the Minister’s submission. On a careful reading of the content of each of the documents that are not subject to redaction, it is evident that the information is the same. In my opinion, it follows that the redactions of particular paragraphs of those documents are the same.
Counsel for the Minister further pointed out that when regard is had to the Stone affidavit and the affidavit of Lynn Moore filed on 17 October 2017, it is apparent that the redactions have been made to remove details that could disclose the identity of the third party who provided the information, which is the basis of the public interest immunity claim. Counsel for the Minister noted that at the commencement of the resumed hearing, Counsel for the Applicant accepted the basis of the public interest immunity claimed by the Minister, with the result that the Applicant accepted that the certificates were valid. Counsel for the Minister therefore submitted that on this basis, the Court can be satisfied that the redacted information is of the character described in the Stone affidavit. I agree with the Minister’s submission.
Counsel for the Minister submitted that the present case is in a different category to many decisions of this Court and the Federal Court regarding notification of certificates issued under s.438 of the Act, in that the Tribunal engaged in the process available to it under s.438(3) of the Act. Counsel for the Minister submitted that in the present case, the Tribunal considered the discretion available to it under s.438(3)(b) of the Act, and put to the Applicant the information that it considered it was appropriate to provide to the Applicant; both at the hearing and after the hearing, in the s.424A letter (CB 214). Furthermore, in accordance with s.438(4) of the Act, the Tribunal gave a direction under s.440 of the Act that the material identified in the direction must not be published or otherwise disclosed, except for the purposes of or in connection with the Tribunal’s review.
Counsel for the Minister submitted that the fact that the Tribunal followed each step available to it under sub-ss.438(3) and (4) of the Act is relevant to the question of whether, firstly, there was any practical injustice to the Applicant, and secondly, the futility of relief.
Counsel for the Minister submitted that in exercising its discretion under s.438(3)(b) of the Act, the Tribunal considered whether to waive public interest immunity in relation to the identity of the person or persons who provided the information, and that the Tribunal decided it would not. The Tribunal put to the Applicant information that it considered relevant, or which might be a reason for the Tribunal affirming the decision under review. However, Counsel for the Minister argued that the Tribunal, in providing this information to the Applicant, made it clear to the Applicant that it does not necessarily accept everything that it put to him. Counsel for the Minister submitted that this is evident from the s.424A letter, in which it stated in bold text, before any of the particulars of the information were given, “[p]lease note, however, that we have not made up our mind about the information”.
Counsel for the Minister submitted that the gist of the material that the Tribunal considered to be important, or material that would form part of the reason for refusing the application, was put to the Applicant. Counsel for the Minister noted that the Applicant does not make a submission that there is a problem with the substance of the information that was put to him. Counsel for the Minister accepted that the Tribunal put information to the Applicant because it had formed a view that it might well be relevant, and that the information so put might have affected the Tribunal’s consideration of the Applicant’s case. However, Counsel for the Minister submitted that as the Tribunal provided the Applicant with an opportunity to respond to the information, it cannot be assumed that the Tribunal was going to take the information into account in making its decision.
Counsel for the Minister argued that although the Applicant lost an opportunity to request the Tribunal to disclose the source of the information because the Tribunal had already considered what would be appropriate to provide the Applicant, and did so, it would have made no difference for the Applicant if he had been given the opportunity to make that request.
Counsel for the Minister submitted that insofar as the identity of the source was concerned, the Applicant did ask for that information in his response by statutory declaration to the s.424A letter. Counsel for the Minister argued that this is evident from the Applicant’s response where the Applicant says that it is difficult for him to respond because he does not know the source, and requests that no weight be given to that information. Counsel for the Minister argued that in response to the Applicant’s request, the Tribunal could have decided to provide the Applicant with information about the source, given that he had said that it was difficult for him to respond to the information. Counsel for the Minister submitted that it was open to the Tribunal to re-exercise its discretion under s.438(3)(b) of the Act. However, the Tribunal decided not to exercise its discretion in this way, and proceeded to make a decision. The Tribunal acceded to the Applicant’s request, and gave no weight to the October 2014 and December 2014 certificates.
Counsel for the Minister submitted that in addition, the Tribunal made it plain that it had decided to give no weight to the information, and did so because it accepted the Applicant’s response that the Tribunal should not give any weight to the information. The Minister referred to the decision record where the Tribunal states (CB 271 at [101]):
101. …The Tribunal does not have before it any information regarding the source of the allegations and is unable to verify them. For this reason, the Tribunal considers that it would be unsafe to accord them any weight...
In following sentence of this excerpt, the Tribunal states that in the context of its credibility concerns, the information would provide a “plausible alternative explanation”. Counsel for the Minister submitted that this is nothing more than speculation on the part of the Tribunal. Counsel for the Minister submitted that this is evident from the use of the phrase “plausible alternative explanation”. Counsel for the Minister argued that this statement must be read with the balance of the paragraph regarding the Tribunal’s conclusions about the Applicant’s evidence, and that the Tribunal’s decision discloses that the Tribunal made numerous adverse credibility findings about the Applicant’s evidence, and reached its decision on this basis alone.
Counsel for the Minister submitted that the decision in VEAL is distinguishable. In VEAL, the applicant had been given no indication by the tribunal that the material had been received, or that it had been considered or taken into account in any fashion. Counsel for the Minister submitted that by comparison, in the present case the Tribunal followed a process in which the Tribunal informed the Applicant that allegations had been received, and set out the nature of the allegations in summary form.
Counsel for the Minister also submitted that it is not uncommon for a tribunal to set aside information that it has received. By way of example, Counsel for the Minister referred to the decision in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (“MZAFZ”). Justice Beach said (MZAFZ at [19]):
19. It is said that the primary judge erred in not identifying jurisdictional error in relation to the Tribunal’s consideration of the “dob-in information”. In terms, it is said that the primary judge “ought to have found that the Tribunal’s consideration of the ‘dob in’ information, without giving the appellant an opportunity to respond to that information, amounted to a denial of procedural fairness, even if the Tribunal ultimately placed no weight on it”.
In MZAFZ, the “dob-in information” was attached to an email by the informant. The tribunal relevantly dealt with the “dob-in information” as follows (MZAFZ at [12]):
12. …At [53], the Tribunal said:
Dob in
The Department received information from a third party that the applicant’s claims were false and that she was regularly attending a mosque in Fawkner. As mentioned to the applicant at the hearing, I do not know what the motivation of this person was and I have placed no weight on this information in making my decision.
Justice Beach addressed this ground of appeal as follows
(MZAFZ at [23]-[26]):
23. First, given that s 422B(1) provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals, the observations in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs at [10] are not apposite in the present context. That decision, as it explains in footnote 16, addressed the legislative regime in force prior to the introduction of s 422B. Similarly, NIB Health Funds is of no direct assistance.
24. Second and in any event, the information in the “dob in” email did not contain information of the type dealt with in s 424AA or s 424A. The Tribunal said that it gave the information no weight. Accordingly, the phrase in each provision “… that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review…” was not engaged. The Tribunal did not so consider in the “positive” terms of the statutory language, as it explained at [53] of its reasons.
25. Third, if it is necessary to say so, the Tribunal, given the context and nature of the information and its anonymous source, gave the applicant “clear particulars”… I should say, for completeness, that there was no necessity for the applicant to be given a copy of the relevant underlying email.
26. Fourth and generally, the applicant was not denied any relevant opportunity “to give evidence and present arguments relating to the issues arising…” (s 425(1)); see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [33] to [35]. The applicant was put on notice of the substance of the “dob in” email. But in any event it was put to one side by the Tribunal. The Tribunal had properly and fully identified the issues that were determinative and as against the applicant including, to the extent necessary, the evidence probative to such issues
Counsel for the Minister submitted that in the present case, the Tribunal adopted a similar approach to that adopted by the tribunal regarding the “dob-in information” in MZAFZ. Counsel for the Minister argued that in the present case, the information that the Tribunal considered to be the relevant information which might have led it to refuse the application was put to the Applicant for him to respond. The Applicant did respond to the information, but the Tribunal ultimately decided not to rely on the information. Counsel for the Minister submitted that it was not a breach of procedural fairness for the Tribunal to proceed in that way. Counsel for the Minister argued that if it were otherwise, any decision made after a tribunal had received information, put it to an applicant, but decided not to give the information any weight, would not be safe from attack for jurisdictional error.
As noted earlier, the Minister also relies on these submissions in submitting that in the event the Court finds that there was procedural unfairness, the Court should exercise its discretion to refuse to grant the relief sought. The Minister sets out the relevant principles as follows:[8]
26. The classic statement of the rule is in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. The High Court there said that “an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial.” That includes in circumstances of a denial of procedural fairness.
27. Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69, accords with Stead and other authority on the point. In considering the necessarily predictive question of what the Tribunal would have concluded if it had followed the appropriate procedure, the Court needs to be satisfied of “very clear adverse prediction”. However, it is not necessary that it be “absolutely certain” that the Tribunal would have come to the same conclusion.[9]
(Footnote in original)
[8] The First Respondent’s Submissions filed on 15 September 2017 at [26]-[27].
[9] Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69 at [46]; see also [12] and [126].
The Minister submitted that there would not have been a different result, because the Applicant was given the opportunity to request, and did request the disclosure of the source of the information, and because in any event, the Tribunal did not rely on the information that was the subject to the certificates.
Consideration
I shall first consider the Applicant’s submission that he lost an opportunity under s.438(3)(b) of the Act to request the Tribunal to waive the public interest immunity in relation to the source of the information that was the subject to the certificates issued under s.438 of the Act.
Counsel for the Applicant referred to the decision of the High Court in WZARH for a general proposition about the circumstances under which procedural fairness giving rise to jurisdictional error may arise under particular statutory regimes (see [45] above). The Court was not referred to any particular paragraph from that decision. I presume that Counsel for the Applicant was referring to the following extracts from the judgment of Gageler and Gordon JJ (WZARH at [55]-[60]), referred to in summary form in CQZ15):
55. The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister’s statutory powers of consideration.
56. Such a breach of the implied condition which governs the exercise of the Minister’s statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the offshore entry person of “the possibility of a successful outcome”.
57. That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that the concern of procedural fairness is to “avoid practical injustice”, and with his Honour’s conclusion in that case that there was no denial of procedural fairness where “[n]o practical injustice ha[d] been shown”. The absence of practical injustice in Lam lay in the fact that “[t]he applicant lost no opportunity to advance his case”, it was not “shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”.
58. Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court, Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.
59. There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.
60. Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.
(Footnotes omitted)
I agree with the Minister’s submission that the circumstances in VEAL were very different to the circumstances in the present case. This is evident from the following extract of the judgment in VEAL, where the Court held (VEAL at [7]):
7. In the appeal to this Court, the appellant and the Minister treated the determinative question as being whether procedural fairness required the Tribunal to inform the appellant of the existence of the letter, or its contents, before the Tribunal decided to affirm the refusal to grant the appellant a protection visa. That question, framed as it is by reference to common law principles of procedural fairness rather than by reference to the application of particular provisions of the Act, should be answered “yes”.
It was right for the Tribunal not to have provided a copy of the letter to the appellant and not to have disclosed to the appellant any information that may have revealed the identity of its author. Before reaching its decision, however, the Tribunal should have told the appellant the substance of the allegations made in the letter.(Emphasis added)
In my opinion, it is clear that in VEAL it was the failure to accord the applicant procedural fairness by revealing the information to the applicant during the review process which gave rise to jurisdictional error. It was in this context that the tribunal’s statement that it gave no weight to the letter failed to overcome the absence of procedural fairness in the review process. The High Court relevantly stated
(VEAL at [18]):
18. It follows that the Tribunal’s statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal’s obligation to give the appellant procedural fairness.
In the present case, the Tribunal did not decide that it should give no weight to the information subject to the October 2014 certificate before giving the Applicant an opportunity to respond. Firstly, the Tribunal disclosed particulars of two allegations at the hearing (CB 267 at [74]). I take the reference to the two allegations at [74] of the Tribunal’s decision to be a reference to the allegations described by the Tribunal at [31] (CB 260) and [43] (CB 262) of its decision. Secondly, the particulars of the allegations referred to at [31] and [43] of the Tribunal’s decision were set out the Tribunal’s s.424A letter, after the hearing.
There can be no doubt that the Tribunal was obliged to afford the Applicant procedural fairness in the exercise of its powers under s.438 of the Act.
In MZAFZ, Beach J considered the application of s.422B(2) of the Act on s.438 of the Act. His Honour held that s.422B(2) of the Act did not displace the general laws of procedural fairness where a certificate had been issued under s.438 of the Act. This statement was approved by the Full Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (see CQZ15 at [31]).
Although the jurisdictional error which arose in MZAFZ was the invalidity of the certificate issued by the Minister (the existence of which was not disclosed to the Applicant), Beach J, assuming the certificate was valid, examined in some detail the requirements of procedural fairness where a tribunal is notified by the Minister of a certificate issued under s.438 of the Act. Unless it is overruled, the decision is binding upon this Court.
Justice Beach said (MZAFZ at [50]-[53]):
50. Procedural fairness required that the Tribunal ought to have (but did not in the present case):
(a) disclosed the existence of the certificate to the applicant; on this aspect, I do not propose to follow what was said in Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [29] per Dowsett J who was in any event discussing s 375A and was influenced by the strictures thereof that did not contain an equivalent to s 438(3) (his Honour was not discussing s 376);
(b) given the applicant the opportunity to make submissions on the validity of the certificate if she so chose; of course there is an air of unreality to affording such an opportunity to a self-represented litigant who requires an interpreter, but that does not deny the existence of any such requirement;
(c) disclosed to what extent, if any, the Tribunal was going to take into account information covered by the certificate and as a part thereof at least whether the information was favourable, unfavourable or neutral to the applicant;
(d) given the applicant at least an opportunity to seek a favourable exercise of discretion under s 438(3)(b).
51. Putting to one side for the moment s 422B, given that the Tribunal ex hypothesi would have relevant documents covered by the certificate, for the applicant not even to have knowledge of the existence of the certificate is antithetical to her interests. Only with knowledge of the certificate would she then be able to:
(a) challenge its validity;
(b) enquire of the Tribunal how it was going to use the material; and
(c) seek an exercise of power under s 438(3)(b).
50. To deny her knowledge of the existence of the certificate would effectively preclude her from taking any one or more of steps [51] (a) to (c). Moreover, the fact that s 438 does not itself contain an express statutory obligation to disclose the certificate does not foreclose any procedural fairness requirement, subject of course to the operation of s 422B.
53. Further, if the applicant was told of the existence of the certificate, it would be a denial of procedural fairness for the applicant not to be given the opportunity to take steps [51] (a) to (c) (cf NAFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 473 at [35] to [43] per Moore J). The applicant may be seen as a beneficiary of any exercise of power under s 438(3)(b). It is counter-intuitive to suggest that as such a beneficiary she should be denied the opportunity to take any one or more of steps [51] (a) to (c).
I am satisfied that at the Tribunal hearing, the Applicant lost an opportunity to request that the Tribunal disclose the source of the information or allegations. This is because the Tribunal proceeded to exercise its discretion under s.438(3)(b) of the Act to disclose information to the Applicant, without first inviting the Applicant to make submissions about the exercise of that discretion to disclose the source of the information.
To that extent, it can be said (using the words of Beach J) that the Applicant was denied “an opportunity to seek a favourable exercise of discretion under s 438(3)(b)” (see MZAFZ at [51(d)] extracted above).
On the other hand (in conformity with what Beach J identified as a requirement of procedural fairness), the Tribunal did disclose to the Applicant its consideration of the extent of the relevance of the information covered by the certificates, and whether the information was unfavourable to the Applicant (see [51(c)], extracted at [80] above). In my opinion, the Tribunal did this by disclosing the information at the hearing, and in response to the Applicant’s request, conveyed that information in writing after the hearing, and invited the Applicant to respond to that information. The Applicant did respond.
It is evident from the Applicant’s response that the anonymity of the source of the information was an issue for him. The Applicant stated at numerous points in his statutory declaration that he did not know the source of the information, and that this made it difficult for him to respond (although he did respond to the content of the allegations). I reject Counsel for the Applicant’s submission that in his response, the Applicant did not request that the Tribunal disclose the source of the information because he thought he had no right to request it. There is no evidence from the Applicant to this effect. The Applicant’s affidavit filed on 19 September 2017 is silent on this point. It is relevant that the ASRC, although not representing the Applicant, had informed the Tribunal that it was providing assistance to the Applicant on how to respond to the Tribunal’s invitation to comment on the information (see [28] above).
In my opinion, in responding to the correspondence from the Tribunal, the Applicant had an opportunity to request the Tribunal to disclose the source of the information, however he chose not to utilise this opportunity. Instead, the Applicant requested that the Tribunal place no weight on the information because of the anonymity of the source.
For these reasons, I find that the Applicant did not lose an opportunity during the process of review to request the Tribunal exercise its discretion under s.438(3)(b) of the Act to disclose the source of the information. Accordingly, I am not satisfied that the Applicant was denied procedural fairness in the process of review.
In the event that I am wrong on this point, and the Applicant was not accorded procedural fairness because he was not given an opportunity to request the disclosure of the source of the information under s.438(3)(b) of the Act, I am satisfied that this failure did not deprive the Applicant of the possibility of a successful outcome for two reasons. Firstly, I am satisfied that there would have been no difference in outcome if the Applicant had been afforded an opportunity to request the disclosure of the source of the information. Secondly, the Tribunal stated that it did not accord the information any weight.
Turning to the first reason, I do not agree with the Minister’s submission that in his response to the s.424A letter, the Applicant requested that the Tribunal disclose the source of information. However, I am satisfied that the Tribunal was on clear notice that the Applicant was very concerned about the anonymity of the source. The Applicant made this point repeatedly in his statutory declaration (see [29] above). I agree with the Minister that it was open to the Tribunal to re-exercise its power under s.438(3)(b) of the Act to disclose the source of the information to the Applicant. The Tribunal did not do so.
I reject the Applicant’s submission that the issuing of a direction by the Tribunal under s.440 of the Act foreclosed this possibility. The Tribunal’s s.440 direction was made in conformity with the obligations imposed upon it under s.438(4) of the Act, which simply requires the Tribunal to issue a direction under s.440 of the Act whenever the Tribunal discloses any matter to the Applicant under s.438(3) of the Act. There is no reason why, in the process of review, a tribunal could not exercise its discretion under s.438(3)(b) of the Act on a number of occasions. Section 438(4) of the Act merely requires that on each occasion the Tribunal discloses any matter to an applicant under s.438(3), a direction is issued under s.440 of the Act.
Furthermore, the Tribunal said that it “does not have before it any information regarding the source of the allegations and is unable to verify them” (CB 271 at [101]). The Tribunal went on to state that because of this, “it would be unsafe to accord them any weight”. In my opinion, it is manifestly clear that the Tribunal turned its mind to consider the veracity of the source of the allegations. It was unable to verify the source, and thereby formed a view that giving any weight to the allegations would be unsafe. Because of this inability, even if the Applicant had requested the Tribunal to exercise its discretion under s.438(3)(b) of the Act, the possibility that the Tribunal would have acceded to the Applicant’s request is so remote that I cannot be satisfied that the Applicant was deprived of a successful outcome.
The second reason for my conclusion that any failure to accord procedural fairness did not deprive the Applicant of the possibility of success, is that the Tribunal gave no weight to the information.
There are two issues arising for consideration in relation to the second reason. The first issue arises from the way in which the Tribunal disclosed the information to the Applicant during the process of review. The second issue arises from a statement made by the Tribunal immediately after it had said that it would not accord the information any weight.
In respect of the first issue, in conformance with the requirements imposed on the Tribunal under s.438(3) of the Act, the Tribunal put the information to the Applicant at the hearing under s.424AA of the Act, and after the hearing under s.424A of the Act. The Tribunal engaged in the language of those provisions: cf MZAFZ at [24].
The question is whether, by the engagement of this language, the Tribunal could be said to have acted on the information, or whether, despite its disavowal, the Tribunal accorded weight to the information in reaching its decision.
At the Tribunal hearing, the Tribunal (using the language of s.424AA of the Act) put to the Applicant “information which it considered would be a part of the reason for affirming the decision to refuse to grant him a protection visa” (CB 267 at [74]). There can be no doubt that at this stage of the review, the Tribunal believed the information was relevant and unfavourable to the Applicant. However, the Tribunal qualified its use of this language by explaining to the Applicant “…that if it relied on information, it may as a consequence not be satisfied that the applicant had presented truthful evidence…” (CB 267 at [74]; emphasis added).
In my opinion, the Tribunal’s qualification in explaining why the information may be relevant is a clear indication that although the Tribunal considered the information relevant, it had not yet decided whether it would rely on the information.
After the Tribunal hearing and in response to the request by the Applicant, the Tribunal put to the Applicant the information in writing under s.424A of the Act. I agree with the Minister’s submission that although the correspondence invited the Applicant “to comment on or respond to certain information which [the Tribunal] consider would, subject to [the Applicant’s] comments or response, be the reason, or a part of the reason, for affirming the decision under review”, the Tribunal made it abundantly clear that it had not made up its mind about the information. It did this by making the statement, in a separate paragraph and in bold text, “[p]lease note, however, that we have not made up our mind about the information” (emphasis in original).
Furthermore, having explained the relevance of the information to the review, the Tribunal said that “[i]f the Tribunal relies on the information, it may not be satisfied that [the Applicant’s] identity and personal circumstances in Nepal are as claimed…” (see [26] above).
I am satisfied that although the Tribunal considered the unfavourable information to be relevant, and disclosed that information to the Applicant pursuant to s.438(3)(b) of the Act, the Tribunal had not yet decided whether it would take into account that information in reaching its decision.
Accordingly, I am not satisfied that by engaging in the language used in each of ss.424A and 424AA of the Act at the hearing and in the post-hearing correspondence to the Applicant, the Tribunal could be said to have acted on the information in making its decision.
The second issue arises from the fact that immediately after stating that it had formed the view that it would be unsafe to accord the information any weight, and giving reasons for that view, the Tribunal went on to state (CB 271 at [101]):
101. ..However, the Tribunal notes that in the context of the credibility concerns outlined above, particularly, as regards the applicant’s identity and personal circumstances, if accepted, they would provide a plausible alternative explanation for the deficiencies in the applicant’s evidence.
I am not satisfied that I can infer from the above statement that the Tribunal did act upon the information. Whilst somewhat clumsily expressed, in my opinion, the Tribunal is merely saying that if it had taken into account the information (which it did not, because it would be unsafe to do so), the information would have provided a plausible alternative for the deficiencies in the Applicant’s evidence.
Furthermore, having regard to the context in which that statement is made in the above paragraph, and in the context of the totality of the reasoning and findings of the Tribunal, I am satisfied that the Tribunal did not accord the information any weight.
The Tribunal variously described the Applicant’s evidence as “unusually opaque”, “unconvincing”, “vague and lacking in detail”, “implausible”, “unconvincing”, “highly dubious”, and “troubling”. The Tribunal further expressed difficulty reconciling the Applicant’s evidence about his lack of education with his competence in the English language and the level of sophistication with which he expressed himself (see [31] above).
Having made these various adverse findings about the Applicant’s evidence, the Tribunal then proceeded to consider what weight to accord the information, if any. It commenced its consideration by stating “[a]gainst this background” (being the Tribunal’s findings regarding the Applicant’s evidence), and went on to refer to the “two allegations received by the Department” (CB 271 at [101]).
I am satisfied that the Tribunal’s reasoning for its decision to affirm the decision under review was clearly its numerous concerns regarding the Applicant’s evidence. There is nothing in the expression of these concerns, or the decision as a whole, to suggest that the Tribunal acted upon the information covered by the October 2014 and December 2014 certificates.
Conclusion
For the reasons set out in this judgment, I find that the Applicant’s ground of judicial review is not made out, and that the Tribunal did not engage in jurisdictional error.
Accordingly, an order will be made that the Applicant’s Amended Application for judicial review filed on 8 September 2017 be dismissed. An order will also be made that the Applicant pay the First Respondent’s costs in a fixed amount.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 22 June 2018
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