ALP15 v Minister for Immigration and Border Protection

[2017] FCCA 1418

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALP15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1418

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal –   whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal erred by failing to consider the applicant’s claims cumulatively – whether the Administrative Appeals Tribunal considered all claims made by the applicant – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 46A, 375A, 425, 438, 474

Cases Cited:
ALP15 v Minister for Immigration & Anor [2016] FCCA 1151
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69
SZTAL v Minister for Immigration and Border Protection & Anor; SZTGM v Minister for Immigration and Border Protection & Anor [2016] HCATrans 276
Paramananthan v Minister for Immigration (1998) 94 FCR 28
Singh v Minister for Immigration and Border Protection (2016) 244 FCR 305
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
SZMJM v Minister for Immigration and Border Protection [2016] FCCA 2884
CKG15 v Minister for Immigration and Border Protection [2017] FCCA 938
AVO15 v Minister for Immigration and Border Protection [2017] FCA 566
BEG15 v Minister for Immigration and Border Protection [2016] FCCA 2778

Applicant: ALP15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2994 of 2016

Judgment of: Judge Emmett

Hearing date: 21 June 2017

Date of Last Submission: 21 June 2017

Delivered at: Sydney

Delivered on: 21 June 2017

REPRESENTATION

Counsel for the Applicant: Leonard Karp

Solicitors for the Applicant: Rasan T Selliah and Associates

Counsel for the Respondents: Tim Reilly

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2994 of 2016

ALP15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 28 September 2016 (“the Tribunal”).

2. The applicant’s claims and the Tribunal’s decision, the subject of this application, are accurately summarised by counsel for the applicant, Mr Karp, in his written submissions as follows:

   “BACKGROUND AND HISTORY

   3. The applicant is a Sri Lankan asylum seeker of Tamil ethnicity who arrived in Australia undocumented on 19 September 2012 (CB 1ff). He applied for a Protection Visa on 6 December 2012 (CB 32ff) apparently having been permitted to do so pursuant to s.46A(2) Migration Act. That application was rejected on 23 September 2013 (CB 200-226). An application to the then Refugee Review Tribunal was lodged on 27 September 2013 (CB 229ff). The Tribunal held its s.425(1) hearing on 23 December 2014 (CB 253) and 19 February 2015 (CB 268) and its decision was made on 18 March 2015.

   4. That decision was quashed by Order of Judge Smith (ALP15 v Minister for Immigration & Anor [2016] FCCA 1151 (5 April 2016). The application was remitted for decision according to law.

   CLAIMS

   5. The applicant was born (CB 43) and lived in Trincomalee for the whole of his life whilst in Sri Lanka (CB 79). He claimed to have worked in his family fishing business from 2007 to January 2011 and again from October 2011 to July 2012 with a period of unemployment whilst he was in Singapore and Malaysia (see CB 81). His claims were set out in a statutory declaration at CB 86-92, and in dot point form in a submission lodged by his then migration agent on 12 June 2014 (CB 174-175). These were in summary;

   i. He is a young Tamil from Trincomalee in the Eastern Province of Sri Lanka.

   ii. In 1996 his grandfather was shot and killed by the Sri Lankan Navy.

   iii. The Sri Lankan military went on a rampage after a bomb exploded in Trincomalee town five minutes after the applicant and his sister passed the spot. This caused the family to flee to India for several months.

   iv. After their return, in February 2008, he was interrogated by the Karuna Group (a Tamil paramilitary group allied to the government). In May 2008 his cousin disappeared after being taken in for questioning.

   v. During 2009 the applicant, his father and uncle suffered continual harassment, and beatings at the hands of the Sri Lankan navy whilst trying to work as fishermen.

   vi. Around January 2011, whilst the applicant was fishing with his father, some unknown men who spoke Tamil came to the applicant’s home and told his mother he was wanted for questioning. Based on his previous experiences and what had happened to his cousin, he left the country. After some months in Singapore and Malaysia, in which he faced many difficulties, he decided to return to Sri Lanka, hoping that the situation had improved.

   vii. In 2012 he was taken in a white van, interrogated about his knowledge of an LTTE fund raiser known as “Nagulan”, and tortured. He was held for two to three days before being released. He decided to flee the country after that.

   6. A further claim raised at the first Tribunal’s hearing was that Sri Lankan intelligence officers had questioned his parents in mid-2014. He claimed that they had said that there was a request from the Australian Government as to whether the applicant had a terrorist background or had been involved in criminal activities (CB 313 [45]).

   7. The ability of Tamil fisherman to pursue their occupation was specifically raised in submissions to the Department at CB 123-125 and 181-185, in a submission following the first Tribunal hearing at CB 283-284, although the information in the latter submission pertained mainly to Indian Tamil fishermen from the state of Tamil Nadu. The specific submissions were that Tamil fishermen were being excluded from traditional fishing areas by Singhalese with the connivance of officials and the military, that Singhalese fishermen and the military continue to mistreat Tamil fishermen by destroying their nets and taking fish from them and in physically attacking them. It was submitted that this threatened the livelihoods of Tamil fishermen.

   8. The applicant’s solicitor and migration agent lodged another submission after the hearing held by the second Tribunal (CB 351-358). That submission canvassed relevant provisions of the Migration Act, aspects of his credit including his contacts with “Nagulan”, the particular social groups to which he was said to belong. Further country information was annexed to that submission included an Amnesty International report with a detailed section on the deplorable state of prison conditions in Sri Lanka to the effect that applicants who have left the country unlawfully claim that they cannot return because of the risk that they will face such conditions (CB 378-381).

   THE SECOND TRIBUNAL DECISION

   9. The Tribunal;

   (a) Accepted that the applicant, his father and uncle, experienced harm during their fishing work, including in 2009 (CB 396 [78]). It was not however satisfied that the applicant was questioned and beaten by the navy after 2009 (CB 400 [96]). It was not satisfied that he would suffer serious or significant harm by either the navy or Singhalese fishermen, although he may experience some “low level harassment or interference with his work” and that he may have limited avenues of complaint should he experience harassment from the navy or Singhalese fishermen (CB 400 [98]). It interpolate that the applicant complained of nets and catches being stolen.

   (b) Rejected claims that the applicant was abducted in 2012, or that his parents were visited by men asking for him in 2014 (CB 398 [87]-[88]). It did not consider that he came within the profiles of persons whose protection claims required particularly careful consideration pursuant to the eligibility guidelines set out by the UNHCR in its report dated 5 July 2012 (CB 398 [91] at footnote 1).

   (c) Accepted that there is a real chance that the applicant would encounter Sri Lankan authorities at the airport and upon return to his home area (CB 399 [94]). After diverting to the question of whether he faced danger from the navy or Singhalese fishermen, it moved to the consequences of his illegal departure from Sri Lanka (CB 400 [99]).

   10. In this last respect it found that the applicant was likely to be questioned at the airport and charged with the offence of having departed illegally. It accepted that there was a low, albeit real chance that he may spend a brief period in remand in prison conditions which are cramped, uncomfortable and unsanitary until a magistrate is available. It reasoned that this applies to all persons who have left Sri Lanka illegally, and the Tribunal was not satisfied that during the brief period of remand there is a real chance of his suffering intentionally inflicted torture or worse. It also found that such treatment would be the consequence of the non-discriminatory enforcement of a law of general application which was appropriate and adapted to achieving a legitimate state objective. It was therefore not satisfied that any element of the process would involve serious harm (CB 400-401 [100]-[102]).

   11. Further, considering complimentary protection, which is specifically dealt with in CB 401 [103], the Tribunal did not accept that any severe overcrowding in poor or insanitary conditions would be intentionally inflicted, or would be intended to cause extreme humiliation in terms of the definition of “degrading treatment or punishment” in s.5 of the Migration Act, read with s.36(2A)(e). It was therefore not satisfied that any element of the process would involve, “significant harm” as defined in s.36(2A).”

The proceeding before this Court

1. The applicant was represented before this Court by Mr Leonard Karp, of counsel. 

2. Mr Karp sought leave to file in Court an Amended Application. Leave was opposed by the first respondent on the basis that the grounds of the applicant’s Amended Application had insufficient prospects of success.

3. Mr Karp was granted leave to rely on Grounds 2 and 5 of the Amended Application.

4. Grounds 2 and 5 of the Amended Application are as follows:

   “2. The Second Respondent committed jurisdictional error by failing to consider a claim or an integer of claim that arose either expressly or clearly on the information and evidence before it.

   (a) The second respondent (the Tribunal) failed to consider whether the “low level harassment” that it accepted (at CB 400 [98]) may be continually inflicted on the applicant and his father whilst fishing for their living and whether the cumulative effect of such “low level harassment” may amount to serious harm within the meaning of s.5J(4)(b) of the Migration Act.

   5. The Tribunal misconstrued the words “intentionally inflicted” in the definition of “cruel or inhuman treatment or punishment” in s.5 of the Migration Act by requiring that the relevant intention must be to cause the harm feared, whereas that intention need only be to place a person in a situation where it is reasonably foreseeable that the feared harm may occur.”

5. Mr Karp confirmed that he did not seek to rely on Ground 3. Leave was refused to the applicant to rely on Ground 4 on the basis that that ground had insufficient prospects of success.

Ground 2

1. In relation to Ground 2, Mr Karp contended that the Tribunal had failed to deal with the applicant’s claim that he may be continually inflicted with conduct that the Tribunal found to be low-level harassment in circumstances where the Tribunal did not consider the cumulative effect of that conduct. In support, Mr Karp took the Court to claims made by the applicant in his statement in support of his protection visa application that he had problems with Sinhalese fishermen as follows:

   “We have problems with the Sinhalese fishermen, they cut our nets and cause problems because we are Tamils.”

2. In a fuller statement of claims his claims, the applicant recounted incidents in 2009 where he and his father were prevented from fishing at sea and beaten by the Sri Lankan Navy. The applicant further recounted that on a second occasion, they were ordered to jump into the water. The applicant stated in that body of claims that:

   “Such problems continue to this day, as the Sri Lankan Navy and other Sinhala fishermen harass Tamil fishermen and prevent us from fishing peacefully at sea. They often damage our fishing nets and other fishing gear.”

3. Mr Karp then took the Court to submissions made on behalf of the applicant which cited various excerpts from country information relating to the difficulties Tamils faced in seeking to fish in Trincomalee, including country information that stated:

   “The entire coast is now a monopoly of Sinhala fishermen who have come with hundreds of boats while the resettled Tamil fishermen of the land cannot get into the waters, and that the Tamil fishermen have lost their boats in the war and the resettled among them now try for their subsistence with hand nets.”

4. That submission also referred to recent government actions that have begun to affect several Tamil fishermen of Indian heritage who are now facing extreme hardship, as their livelihoods are being threatened to the point where it may not be possible to subsist in the foreseeable future. 

5. Mr Karp took the Court to a further submission made by the applicant’s migration agent that recounted country information, as well as a further statement that recounted claims made by the applicant. In that statement, the applicant stated he believed that the situation in his area for Tamil fishermen was evolving and he would remain at a real chance of encountering similar or worse harm in the reasonably foreseeable future by Sri Lankan authorities or Sinhalese fishermen while working on his job. In that statement, the applicant also stated he believed that the interests of Sinhalese fisherman are to the detriment of the local fishermen and this has been identified as posing a threat to the livelihoods of the Tamil fishermen in these areas. 

6. The applicant’s statement referred to further country information stating that the military is protecting the Sinhala fishermen’s monopoly by attacking the fishing boats of their competitors from neighbouring Tamil Nadu.

7. The Tribunal, in its decision record, referred in some detail to the discussion that it had with the applicant at the hearing about these claims. The Tribunal noted that the applicant said that his father owns a boat, works with another person on the boat and usually fishes in the Trincomalee Sea. 

8. The Tribunal noted that the applicant provided an account of the two incidents in which he was harassed and harmed by the Navy. The Tribunal noted that the applicant’s evidence in respect of these incidents was essentially consistent. The Tribunal noted that the applicant stated that the incidents occurred towards the end of the Sri Lankan Civil War. The Tribunal further noted that, although the applicant stated he had other problems with the Navy, including being beaten, having his catch destroyed and having his fishing equipment damaged, these two incidents stood out in his memory. 

9. The Tribunal noted that it asked the applicant to provide more detail as to other harm he suffered as a fisherman. The Tribunal noted the applicant’s response that those were the two main incidents. The Tribunal then noted that the incidents occurred around 2009, yet the applicant had continued to work as a fisherman in the area until 2012, apart from the period he was in Singapore and Malaysia.

10. The Tribunal noted it asked the applicant if he had experienced more recent problems and the applicant stated that, during the Sri Lankan Civil War, their problems were more severe, but they had now eased off. Again, the Tribunal asked if the applicant could be more specific and noted the applicant’s vague response that they were questioned, beaten and distracted from their work by the Navy.

11. The Tribunal further noted that the applicant’s father was still working as a fisherman and asked whether he was experiencing any particular problems. The Tribunal noted the applicant’s response that the situation was not as severe as in the past, but they were still being distracted from their day-to-day work. The Tribunal noted that it asked the applicant for more detail and noted the applicant’s response that their nets and tackle were being destroyed, causing them financial loss.

12. The Tribunal noted that the applicant stated he would probably resume work as a fisherman if he was forced to return to Sri Lanka, as he did not know anything else. The Tribunal noted it asked the applicant whether he had any fears about returning to Sri Lanka and resuming work as a fisherman and noted the applicant’s express concerns about the impact of fuel expenses, lots of Sinhala fishermen being allowed into the area, his nets being stolen and getting into disputes with Sinhala fishermen in which the authorities may take the Sinhala fishermen’s side.

13. However, the Tribunal noted that the applicant’s father continued to earn a living as a fisherman and the problems that the applicant had described appeared more in the nature of frustrations, annoyances or obstacles to the applicant earning the kind of living he hoped for as a fisherman rather than persecution or significant harm as defined. The Tribunal asked the applicant whether his father had experienced any particular difficulties with Sinhalese fishermen and noted the applicant’s response that there had not been any attacks on his father, but he had told the applicant that sometimes they would take their catch and if they refused to return it, there was nothing that he could do.

14. The Tribunal noted that the applicant has gained work experience in an industry other than fishing in Australia, and has some training in computing and English. The Tribunal further noted the applicant has a brother who is currently studying electronics. In the circumstances, the Tribunal had some doubt as to whether the applicant would return to work as a fisherman. 

15. However, the Tribunal accepted that fishing was the only form of work the applicant had previously engaged in in Sri Lanka and that his father remained employed as a fisherman. Accordingly, the Tribunal considered the applicant’s position if he was to return to Sri Lanka as a fisherman.

16. The Tribunal accepted that the applicant was harassed and mistreated by the Navy in the course of his work in the past and accepted the evidence as to the two incidents that occurred in 2009.  However, the Tribunal found that the applicant had continued to work as a fisherman after those incidents during the periods he was in Sri Lanka until 2012. The Tribunal also noted the applicant’s evidence that the problems he had experienced eased off following the end of the conflict. 

17. The Tribunal noted that when it asked the applicant to describe any more recent difficulties, the applicant’s evidence was very vague and lacking in detail. Based on the evidence before it, the Tribunal was not satisfied that the applicant was questioned and beaten by the Navy after 2009. The Tribunal noted the applicant’s express concern over the impact of fuel costs, nets being stolen, Sinhala fisherman being allowed into the area and the authorities taking the side of Sinhala fishermen in the event of disputes.   

18. The Tribunal noted that the applicant’s father had continued working as a fisherman until the present time and there was no evidence before the Tribunal to suggest that the applicant’s father had not been able to support his family financially despite those difficulties. The Tribunal noted that the applicant did state that his father had experienced no further attacks, but that sometimes his catch was taken by Sinhala fishermen and there was nothing he could do.

1. Ultimately, the Tribunal was not satisfied on the evidence that there is a real chance or risk of the applicant being seriously or significantly harmed either by the Sri Lankan Navy or the Sinhala fishermen should he return to Sri Lanka now or in the reasonably foreseeable future.

2. The Tribunal then referred to its finding that there was not now a real chance or risk of the applicant experiencing harm of the kind he suffered in 2009 prior to the cessation of hostilities. However, the Tribunal did accept that the applicant may experience some low-level harassment or interference with his work and that he may have limited means of recourse to the authorities should he experience such treatment or become involved in a dispute with a fellow fisherman.  Nevertheless, the Tribunal was not satisfied that such treatment or any failure to protect the applicant in those circumstances involved serious harm amounting to persecution or significant harm.

3. Mr Karp submitted that the Tribunal had failed to consider the cumulative effect of the applicant’s expressed concern over the impact of fuel costs, nets being stolen, Sinhala fishermen being allowed into the area and the authorities taking the side of Sinhala fishermen in the event of disputes.

4. The Tribunal stated that following its consideration of the evidence and its findings that it had considered the applicant’s claims individually and cumulatively, it was not satisfied that the applicant has a well-founded fear of being persecuted in Sri Lanka. In my view, that statement accurately reflects the manner in which the Tribunal considered the applicant’s claims. The Tribunal expressly referred to the totality of the applicant’s concerns and that despite those concerns, the applicant’s father had continued in the same line of work and had been able to support his family. 

5. Mr Karp submitted that the applicant’s claims before the Tribunal were that the conduct would continue and was evolving on the evidence before the Tribunal. However, in my view, the Tribunal was entitled to have regard to the particular evidence of the applicant before it in finding that there was not a real chance of the applicant being seriously or significantly harmed by either the Sri Lankan Navy or Sinhala fishermen should he return to Sri Lanka as a fisherman now or in the reasonably foreseeable future; and that any such harm that he may suffer did not amount to more than low-level harassment or interference with his work.

6. The Tribunal specifically accepted that the applicant may have limited means of recourse to the authorities should he experience such treatment or become involved in a dispute with a fellow fisherman. It is clear from the Tribunal’s reasons that its conclusions resulted from the applicant’s vague details of more recent difficulties or problems since the easing of hostilities in 2009; that the applicant had continued to work as a fisherman after those instance; and, that his father continued to work as a fisherman and support his family financially. The country information, to which I have referred above, referred to instances where fishermen no longer had boats and were forced to continue fishing with nets.  As stated above, this was not the position of the applicant’s father.

7. The Tribunal’s findings and conclusions were open to it on the evidence and material for it and for the reasons it gave.

8. In the circumstances, the Tribunal’s finding that the harm the applicant may suffer in the future, being low-level harassment or interference with his work, was based on a cumulative consideration by the Tribunal of the applicant’s claims and his concerns in relation to the impact of fuel cost, his nets being stolen, Sinhala fishermen being allowed into the area and the authorities taking the side of the Sinhala fishermen in the event of disputes. 

9. Accordingly, Ground 2 is not made out.

Ground 5

1. In relation to Ground 5, Mr Karp conceded that this Court is bound by the Full Court of the Federal Court of Australia’s decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 (“SZTAL”) with the result that there is no jurisdictional error demonstrated in Ground 5. However, the High Court of Australia granted special leave in SZTAL v Minister for Immigration and Border Protection & Anor; SZTGM v Minister for Immigration and Border Protection & Anor [2016] HCATrans 276 and the hearing of the appeal was concluded on 5 April 2017.

2. In the circumstances, and with the consent of both parties, whilst I formally find that Ground 5 does not demonstrate any jurisdictional error, the applicant’s submissions on Ground 5 are as follows:

   “Finally I return to the issue of whether conduct is “intentionally inflicted” which forms part of the Tribunal’s reasoning on the subject of ‘complimentary protection’ at CB 401 [103]. In my submission, the relevant intention is to place a person in conditions where they may suffer “cruel or inhuman treatment or punishment”, or whether the harm is reasonably foreseeable. It is not possible, in my submission, to quarantine the legitimate arrest and remand of accused offenders from the consequences of the remand. A relevant analogy may be found in Paramananthan v Minister for Immigration (1998) 94 FCR 28 at 39 (per Wilcox J) and 43 (per Lindgren J).”

Section 438 Certificate

1. Counsel for the first respondent referred to the issuing of a certificate under s.438 of the Act. Counsel for the applicant conceded that the issuing of the certificate did not raise any jurisdictional error.

2. In the circumstances, and again by consent, I accept counsel for the first respondent’s submission in relation to the s.438 certificate as follows:

   “27. On 31 May 2016, a notification was issued in this matter under s.438(1)(b) of the Act in relation to the Department file and the Tribunal’s review that is the subject of the present proceedings (CB 227) (“s.438 notification”). There is no evidence before the Court to suggest that the Tribunal invited the applicant to comment on the s.438 notification. Nor does the Tribunal’s decision record address the s.438 notification. On that basis, this matter would appear to raise the issues addressed in Singh v Minister for Immigration and Border Protection (2016) 244 FCR 305 (Singh) and MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (MZAFZ).

   28 In Singh, the Full Court of the Federal Court held that Mr Singh had been denied procedural fairness because a non-disclosure certificate issued under s.375A of the Act had not been disclosed to him (at [41]-[52]). This was on the basis that: “The effect of the certificate, if valid, is to require the Tribunal to conduct the review without disclosing the documents or information the subject of the certificate to an applicant…In that sense, the certificate has the immediate effect of diminishing an applicant’s entitlement to participate fully in the review process. That is a sufficient interest to enliven an obligation of procedural fairness” (at [42]).

   29 A similar conclusion was reached by the Federal Court in MZAFZ in respect of a s.438 certificate. In MZAFZ, Beach J identified two jurisdictional errors. Firstly, his Honour held that the Tribunal, having acted on an invalid certificate (in circumstances where the certificate did not identify a sufficient basis for a claim of public interest immunity), did not follow a process according to law. Secondly, Beach J held that the applicant was denied procedural fairness, in that the Tribunal did not disclose to the applicant the existence of the certificate, disclose to what extent, if any, the Tribunal was going to take into account the information covered by the certificate, and did not give the applicant the opportunity to make submissions in respect of the validity of the certificate or to seek a favourable exercise of the discretion in s.438(3)(b) (at [50]). The Minister accepts that the reasoning in Singh and MZAFZ applies to notifications made under s.438(1)(b) of the Act.

   30 In the present case, the s.438 notification has been reproduced at page 227 of the Court Book. The documents the subject of the certificate have been exhibited to an affidavit of the Minister’s solicitor, Mia Wells affirmed on 14 June 2017, and placed in a sealed envelope, in accordance with the suggestion of Kenny, Perram and Mortimer JJ in Singh (at [67]). The Minister will seek leave to admit the affidavit annexing the certificate and the documents into evidence as they relate directly to the applicant’s case in accordance with Part 3.1 of the Evidence Act 1995 (Cth) (SZMJM v Minister for Immigration and Border Protection [2016] FCCA 2884 at [1], [9], [10]).

   31 For the reasons that follow, the Minister submits that both Singh and MZAFZ are distinguishable from the present matter.

   32 Firstly, the s.438 notification in this matter covers a document containing confidential allegation material from a third party. The Minister submits that the s.438 notification was validly made because it clearly relates to and discloses a proper basis for invoking s.438(1)(b). It follows that the Tribunal could not have fallen into the first jurisdictional error identified in MZAFZ by acting on an invalid certificate.

   33 Secondly, to the extent that Singh stands for the proposition that in every case a certificate under s.375A must be disclosed to the applicant, this principle does not extend to certificates issued pursuant to s.438. In this respect, the Minister notes the recent decision of Judge Manousaridis in CKG15 v Minister for Immigration and Border Protection [2017] FCCA 938 (CKG15), in which his Honour expressed view that Singh is not authority for the proposition that:

   “The Tribunal necessarily comes under an obligation to disclose the existence of a certificate that has been issued under s.375A of the Act, and that this principle should apply to certificates issued under s.438 of the Act.”

   34 Thirdly, and in any event, while the Minister accepts that the existence of the certificate was not raised with the applicant at the Tribunal hearing, no jurisdictional error can be made out when it is apparent that the documents covered by the s.438 notification were of no relevance to the Tribunal’s decision (AVO15 v Minister for Immigration and Border Protection [2017] FCA 566; CKG15 v Minister for Immigration and Border Protection [2017] FCCA 938 at [98] – [107]). As such, it cannot be said that in respect of this material, the applicant was denied any opportunity that might have affected the outcome of his application for review, nor did the material enliven the obligations under s.424A of the Act (BEG15 v Minister for Immigration and Border Protection [2016] FCCA 2778 (BEG15) at [64]).

   Further, it is unnecessary to consider whether the Tribunal turned its mind to the operation of s.438(3) in circumstances where the information the subject of the certificate was “neutral to the applicant in the sense that it had no bearing on any findings of fact to be made by it” (BEG15 at [47]).

   35 For the above reasons, the Minister submits that this matter is distinguishable from MZAFZ and Singh, and that no jurisdictional error arises as a result of the s.438 certificate.”

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material including submissions and country information, provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard. The Tribunal discussed with the applicant the country information before it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 29 June 2017