ALL17 v Minister for Immigration

[2018] FCCA 2184

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALL17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2184

Catchwords:
MIGRATION –– Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – whether Authority considered all claims by applicant .

Legislation:

Migration Act 1958 (Cth), ss.422B(1), 424A, 438

Cases cited:

Applicant VEAL of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) CLR 88
MZAFZ v The Minister (2016) FCA 1081

Applicant: ALL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 89 of 2017

Judgment of: Judge Jarrett

Hearing date: 3 August 2018

Date of Last Submission: 3 August 2018

Delivered at: Brisbane

Delivered on: 3 August 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 14 August, 2017 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 89 of 2017

ALL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal given on 20 January, 2017.  That decision affirmed a decision of a delegate of the first respondent to refuse the applicant a protection (class XA) visa.  He applied for that visa on 4 June.  He attended an interview with a delegate of the first respondent on 5 November, 2014 and on 13 November, 2014.  The delegate refused the visa. 

2. Because the Administrative Appeals Tribunal could not decide the application for review in the applicant’s favour on the papers before it, it invited him to appear before the Tribunal for a hearing on 19 October, 2016.  The hearing took place on that day.

3. The applicant’s claims to protection arise out of his assertion that he has been a supporter of the ruling Awami League in Bangladesh and to have later worked as an imam from 2011 until his departure for Australia.  He claims that members of the Bangladesh National Party dominate in his home area and have already murdered some neighbours and abducted his father.  He fears that members of the Bangladesh National Party or the Islamists, Jamaat-e-Islami, will target and detain, interrogate, torture, abuse or even kill him if he returns to Bangladesh.  He claims to fear that the Bangladeshi authorities and the Awami League may target him as an imam by falsely impugning that he is a member or supporter of JI.

4. The applicant also expressed a claim to fear harm if he returned to Bangladesh as a failed asylum seeker in light of the Prime Minister’s derogatory remarks about illegal migrants and her threat to punish them. That summary of the applicant’s claims comes from the Tribunal’s decision record, paragraphs 16 to 18. It is not suggested by the applicant that that summary was inaccurate. The Tribunal’s reasons reveal that it set out the evidence that was placed before it in the documents that it received for the purposes of the review and, as part of the documents that it received for the purposes of the review, it received some documents that were the subject of a certificate issued under s.438 of the Migration Act 1958 (Cth).

5. The certificate certified that the disclosure of the information in certain folios covered by that certificate would be contrary to the public interest because they contain information relating to an internal working document.  The Tribunal, however, decided that, in light of the Federal Court’s decision in MZAFZ v The Minister (2016) FCA 1081, the certificate was invalid because it did not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal then said this:

   21. ….The tribunal further notes that, in any event, the information in these folios is not relevant to the applicant’s protection claims and the content of this decision.

6. I will return to this matter shortly.  The Tribunal considered the claims made by the applicant, but commenced doing so by reference to the applicant’s credibility.  Between paragraphs 24 and 28 of its statement of reasons it discusses various matters relating to the applicant’s credibility.  It then turned to consider his political claims arising out of his support for, and association with, the Awami League, and then concluded as follows:

   32. Having regard to the applicant’s evidence as a whole, the tribunal accepts that he supports the Awami League, voted for it in the 2008 parliamentary elections and may have attended some meetings;  however, it does not accept that his involvement  extended beyond that.  It does not accept that he is a member, that he engaged in political activities such as organising or hosting meetings, or that he was perceived by the BNP or other opposition groups as being an AL member or person of influence.  It also does not accept that the applicant has any political profile through his association with his father.

   33. The tribunal accepts that the applicant may have witnessed some corruption in Bangladesh, as it is endemic to that country;  however, given its assessment of his political profile and interests, the tribunal does not accept that he has witnessed any specific corruption in his home area that is, or would be, perceived as being adverse to the political interests of the BNP.

7. The Tribunal then turned to consider the applicant’s claims about his father and some of his friends being attacked and harmed.  It rejected those claims.  It turned to consider the claims based on the applicant’s work as an imam and, again, rejected those claims.  It considered the circumstances of his departure from Bangladesh and then between paragraph 52 and 57 set out a summary of its findings.  I will not repeat them in these reasons.  The Tribunal reminded itself of the law that it had to apply.  It considered the applicant’s political claims against the refugee criteria and then concluded that the applicant did not face a real chance of harm at the hands of local BNP officials due to his low level support for the ruling Awami League or for any other associated political reason.  It came to similar conclusions in respect of his other claims. 

8. It then considered his complementary protection claim, but, based on the matters that it had already discussed in respect of the refugee claims, concluded that he was not entitled to complementary protection either.  It affirmed the decision under review. 

9. From that decision these proceedings arise.  The applicant has filed an amended application for review.  In that amended application he has worked wholesale amendments to his claims for judicial review.  The first respondent, quite properly, takes no objection to the amended application. 

10. The central focus of the grounds of review now is the way in which the Tribunal treated the material that was the subject of the certificate issued under s.438 of the Act.

11. He says that, for reasons which I will expand upon shortly, the Tribunal’s decision is affected by jurisdictional error because it paid no attention to that material and it did not show it to him.  The Minister says that there is no error in the way in which the Tribunal has approached that matter. 

12. Ground 1 of the amended application says this:

    (1) The applicant was denied procedural fairness (a) by the tribunal failing to disclose to the applicant before the tribunal made its decision (i) the information contained in the documents covered by the invalid certificate issued under section 438 of the Migration Act 1958 (ii) alternatively, copies of the documents, and (b) by the tribunal failing to provide the applicant with an opportunity to be heard on the information contained in the document, including adverse information contained in those documents about inconsistencies with the applicant’s claims.

    Particulars of ground: 

    (1) the tribunal found correctly that the certificate was invalid, relying on MZAFZ v The Minister for Immigration & Anor. 

    (2) The documents, being a GM IMA protection-support-identity integrity checklist contained information that was “credible, relevant and significant” to the application for review.  Applicant VEAL of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88. 

    (3) The “credible, relevant and significant” information contained in the documents included

    (a) the first respondent’s officer’s views that there were “inconsistencies in narrative”,

    (b) the first respondent’s “concerns” regarding the applicant’s travel history, namely, “Borrowed money from his brother’s friend who also made all travel arrangements to leave Bangladesh;  however, client stated that he does not know his name”,

    (c) that there were alleged “omissions/inconsistencies with claims”, namely, “client omitted the fact that two of his uncles were killed.  This was later submitted as additional claims”.

    (4) That this information was “credible, relevant and significant”.  The tribunal

    (a) could not dismiss the information from further consideration and

    (b) was required to provide the applicant with the documents, or, alternatively, inform the applicant of the substance of the contents of the document and give the applicant an opportunity to deal with the information before the tribunal decided to affirm the refusal to grant the protection visa.  Applicant VEAL of 2002 v Minister for Immigration.

    (5) The tribunal did not consider, made no relevant findings and did not afford the applicant an opportunity to be heard about

    (a) the information that the applicant’s two uncles had been killed or

    (b) that the information represented an alleged omission by the applicant or was allegedly inconsistent with the applicant’s other claims. 

    (6) The tribunal’s statement at 21 that the information is not relevant to the applicant’s protection claims and the content of the tribunal’s decision does not demonstrate that there was no obligation on the tribunal to reveal the information to the applicant and give the applicant an opportunity to respond to it before the tribunal concluded its review.  Applicant VEAL of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs.

    (7) The tribunal deciding that it could reach its conclusion and other bases did not discharge the tribunal’s obligation to give the applicant procedural fairness.  Applicant VEAL of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs. 

    (8) By not being afforded an opportunity to be heard the applicant was denied the possibility of a successful outcome.  There is no basis on which it can be concluded that the decision made by the tribunal would inevitably have been the same if the applicant had been given a reasonable opportunity to be heard about the information.  Minister for Immigration and Border Protection v WZARH.

13. The first respondent submits that it is necessary to understand the documents that were the subject of the s.438 certificate. The document, according to the evidence before me, was a checklist that was produced by a departmental officer prior to the delegate’s decision. The checklist highlighted some of that officer’s concerns with the applicant’s identity and claims. They were concerns which arose on the face of particular documents that were before the departmental officer. As the first respondent points out, those very same documents that were before the research officer were also before the Tribunal. Thus the Tribunal had the source documents before it so as to form its own view about the veracity of the applicant’s claims. It did not need to rely upon the assessment of that information by any other person.

14. The first respondent submits that there are really three reasons why the first ground of review cannot succeed.  The first is that the Tribunal, whether the certificate was valid or not, was not required to disclose the checklist to the applicant.  Second, he submits that even if the Tribunal was required to disclose the checklist or the information in it to the applicant, there is no evidence before this Court to suggest that the Tribunal did not do that.  And, third, even if the Tribunal was required to disclose the checklist the applicant and the Court was satisfied that the Tribunal did not make the relevant disclosure, there was no procedural unfairness to the applicant that followed by reason of the Tribunal’s failure to do that. 

15. The first respondent expands on each of those submissions. First, the first respondent says that once the Tribunal determined that the s.438 certificate was invalid, there was no further application or work to be done by s.438 of the Act. The first respondent submits, and I accept, that the checklist, therefore, was like any other document that was provided to the Tribunal by the Secretary of the first respondent’s department, for the purposes of the review. In relation to those documents, the authorities demonstrate that the Tribunal’s obligation to disclose them is set out and prescribed by the Migration Act.

16. The applicant’s submissions, insofar as they appear from the grounds of review, suggest that the Tribunal was subject to common law obligations to provide the document or documents to the applicant for his consideration.  But that is not so.  As was made clear in the decision upon which the applicant himself relies, Applicant VEAL of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) CLR 88, the scheme established under the Migration Act for these types of hearings excludes any common law natural justice obligation. Section 422B(1) of the Migration Act prescribes the procedural fairness obligations that arise in Division 4 of Part 7 of the Act and those matters so prescribed are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.

17. The obligation to provide information to applicants is dealt with in, amongst other places, s.424A of the Act. The Tribunal is obliged to provide adverse information to an applicant in certain circumstances prescribed by the Act where that information is said to be adverse to the applicant. Here the checklist and the information contained within it was not required to be provided to the applicant because, by reason of the text of s.424A of the Migration Act, the Tribunal is only obliged to provide that information to the applicant if the Tribunal considered that the information would be a reason or part of the reason for affirming the delegate’s decision.

18. Here it was not a part of the Tribunal’s reasons for affirming the decision under review because the Tribunal expressly said that it was not relevant to the applicant’s protection claims and the Tribunal’s decision. In light of the Tribunal’s finding that the material in the document was not relevant to the Tribunal’s task, there was no obligation to provide it to the applicant. I accept the first respondent’s submission that s.424A was not engaged in relation to the information in the checklist, or in relation to the document consisting of the checklist itself, and, in the absence of s.424A being engaged, there was no obligation on the Tribunal to provide it to the applicant.

19. As the first respondent points out, in any event the Tribunal’s reasons demonstrate that it made its own credibility findings and undertook its own assessment of the applicant’s claims without reference to the material in the checklist.  So even if the Tribunal had considered what was in the checklist relevant, I accept the first respondent’s submission that it was not “integral to the Tribunal’s decision”.  The second reason why the first ground must fail, according to the first respondent, is that there is insufficient evidence before me to conclude that the Tribunal did not disclose the certificate or the adverse information within it to the applicant. 

20. I accept that argument too.  There is no evidence before me that the relevant document, or the information in it, was not raised with the applicant.  In those circumstances ground 1 must fail for want of proof.  The third reason relied upon by the first respondent to suggest that the first ground of review can’t succeed is that there is essentially no practical injustice to the applicant even if the Tribunal was obliged to provide the document or the information to him and that’s because the Tribunal did not rely on it.  Secondly, the information was against his interests, such that even if it had been brought to his attention there would have been nothing that he could have done with it.  It was an assessment of some inconsistencies in his material.  To quote from the first respondent’s submissions:

Were the applicant told of the information in the checklist the best he could have hoped was that the tribunal would not use the adverse information in it against him.  This was the end result of the tribunal’s decision in any event as a consequence of paragraph 21 of the tribunal’s reasons.

1. I accept that argument.  In my view, ground 1 does not demonstrate jurisdictional error.  Ground 2 of the application for review is in the following terms:

   The tribunal committed a jurisdictional error by (a) finding at paragraph 21 of the tribunal’s decision that the information contained in the documents was not relevant to the applicant’s protection’s claims and the content of the tribunal’s decision and (b) failing to have regard to that relevant information.  Particulars:  (1) the information contained in the documents included (a) that there was “inconsistencies in narrative”, (b) that there were “concerns” regarding the applicant’s travel history, namely, “Borrowed money from his brother’s friend who also made all travel arrangements to leave Bangladesh;  however, client stated that he does not know his name,” (c) that there were “omission/inconsistencies with claims”, namely, “client omitted the fact that two of his uncles were killed.  This was later submitted as additional claims”. 

   (2) The information contained in the documents was “credible, relevant and significant” and so, therefore, could not be dismissed from further consideration by the tribunal.  Applicant VEAL of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs.  (3) The tribunal did not consider whether the information supported the applicant’s claims, including information that two of the applicant’s uncles had been killed.  (4) The information contained in the documents was relevant, whether favourable, unfavourable or neutral, and was required to be considered by the tribunal.

2. The first respondent says that this ground cannot succeed either.  The Tribunal’s finding that the adverse information contained within the document the subject of the certificate, to the effect that it was not relevant, is unassailable.  It is a matter for the Tribunal to consider what was relevant and what was not relevant in terms of its decision.  As the first respondent points out in his written submissions, the applicant asserts by this ground that the Tribunal’s finding that the information was not relevant was in error because the adverse information was relevant.  That really means that the applicant does not accept that the Tribunal was of the view that it was not going to consider that material and give weight to it as it said it was going to do.

3. The first respondent submits that, having regard to the material before the Tribunal, it was hardly surprising that, given its obligation to examine that material for itself, it determined that the opinion of the research officer (for, in effect that is what it did), was not relevant to its exercise.  I accept the first respondent’s submission that the applicant’s challenge to this aspect of the Tribunal’s decision is nothing other than an impermissible challenge to the Tribunal’s factual findings, the merits of the Tribunal’s decision and the Tribunal’s attribution of weight to various aspects of the material before it.

1. The material, as I have already indicated, was not favourable to the applicant.  None of the information, according to the evidence before me, contained in the checklist was capable of assisting the applicant’s claims.  So even if the Tribunal had considered it relevant it would not have assisted the applicant.  In my view, ground 2 does not establish jurisdictional error on the part of the Tribunal.  In those circumstances the grounds articulated in the amended application for review do not indicate that the Tribunal’s decision is affected by jurisdictional error.  The amended application must be dismissed. 

RECORDED: NOT TRANSCRIBED

1. Ordinarily in applications such as these costs follow the event.  The usual rule can be displaced where there are special circumstances.  An inability to pay the costs is not generally seen as special circumstances.  There is no reason why costs should not follow the event.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 August, 2018.

Date: 16 August, 2018