AMI17 v Minister for Immigration
[2019] FCCA 2017
•26 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMI17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2017 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant a protection visa – whether the Tribunal discriminated against the applicant or otherwise acted unfairly towards him – whether the Tribunal’s failure to disclose to the applicant an invalid 438 Certificate and the documents covered by that certificate was material to the Tribunal’s decision – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91R(3), 418, 437, 438 |
| Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 |
| Applicant: | AMI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 333 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 27 July 2018 |
| Date of Last Submission: | 27 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2019 |
REPRESENTATION
| Applicant in person, assisted by an interpreter |
| Solicitors for the First Respondent: | Ms A Zinn of Mills Oakley Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 333 of 2017
| AMI17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of the People’s Republic of China, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Background
The applicant applied for a Protection visa on 16 July 2014. A delegate of the Minister refused to grant the applicant a Protection visa on 31 March 2015. The applicant applied for review of the delegate’s decision. A differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision. On 23 March 2016, however, this Court, by consent, set asidethe first Tribunal’s decision and remitted the matter to the Tribunal.
Applicant’s claims for protection
In a statement dated 15 July 2014 attached to his application for a protection visa, the applicant made the following claims:[1]
[1] CB27-29
a)In May 2007 the applicant started working at a pharmaceutical company. The work was difficult and he suffered from exhaustion and other ailments. That caused him marital problems.
b)In May 2010 the applicant met a Falun Gong practitioner (Mr P) at a gathering. Mr P introduced the applicant to the benefits of Falun Gong. Without being “fully aware” of the government’s policy towards Falun Gong, the applicant decided to “have a try”.
c)After practising Falun Gong privately for six months he “felt the conspicuous benefit” of that practice. He thought it was “absurd” the government was suppressing Falun Gong. The applicant became a devout believer.
d)In January 2012 the applicant formally began participating in Falun Gong activities, including discussing and practising Falun Gong at fellow believers’ houses.
e)On 8 January 2014 the applicant went to a fellow practitioner’s house to watch a Falun Gong training video. Seven police came and confiscated all the Falun Gong books, video, and audio materials the applicant and other practitioners did not have time to hide. They were arrested without a warrant. A fellow practitioner argued with the police and was slapped. The group was taken to a police station.
f)The applicant was interrogated in a separate room. He did not admit guilt or ask for a pardon as the police demanded. After kicking the applicant several times, the police sent the applicant to a detention centre for his stubbornness, where he was detained for fifteen days.
g)The fifteen days of detention was “like life in hell”. The first five days the applicant was interrogated about his Falun Gong practice and was not allowed to sleep. The police beat and abused the applicant for the five days, the applicant had to “receive 3 hours brainwash by the police”, and he was beaten by the jailhouse bully at the instruction of the police.
h)The police asked the applicant to sign a guarantee never to be involved with Falun Gong. The applicant lost fifteen kilograms in fifteen days because of the torture. The applicant signed the document against his will.
i)After his release the police frequently inspected the applicant’s house without notice, and the applicant was required to report to the police station weekly about his ideology. He was criticised by friends and neighbours.
In a supplementary written statement dated 20 July 2014 the applicant made the following additional claims for protection:[2]
a)The applicant met his wife in 2004. On 14 August 2008 the applicant’s wife gave birth to their daughter. After two years the applicant’s wife fell pregnant again and, on 11 April 2011, the applicant’s youngest daughter was born. When the applicant’s wife was pregnant the Chinese government tried many times to seize her and the applicant. The applicant’s wife had to hide at her relative’s home, and the Chinese government detained the applicant.
b)At the detention centre the applicant was persecuted, beaten, and denied food, water, and toilet access to force the applicant to tell the police where his wife was so that she could be forced to have an abortion.
c)While the applicant was detained, the authorities went to his house and took all his valuables. The applicant paid a sum of money to secure his release.
d)After the applicant’s second daughter was born the government imposed a huge penalty on the applicant. The applicant and his wife had to borrow money to pay off the penalty.
e)Following this and the persecution for his practice of Falun Gong, the applicant was exhausted and fled to Australia as soon as his visa was approved.
[2] CB34
Tribunal’s reasons
The Tribunal did not find the applicant to be a credible and truthful witness. [3] It found the applicant fabricated his claims in relation to his fear of persecution as a Falun Gong practitioner, and he concocted evidence to achieve an immigration outcome.[4] The Tribunal relied on a number of matters:
[3] CB145, [24]
[4] CB149, [44]
a)The applicant provided inconsistent, highly implausible, and unpersuasive evidence about how he was introduced to Falun Gong.[5] In his first statement the applicant claimed he was introduced to Falun Gong in 2010 after he met a Falun Gong practitioner, Mr P. At the hearing before the first Tribunal the applicant claimed he commenced practising Falun Gong in 2005, having found out about it “secretly”, and that he formally joined and became a committed member in 2010.[6] At the hearing before the Tribunal the applicant provided yet another account. He said he started reading Falun Gong books and he started practising in 2009.[7]
b)The applicant provided inconsistent evidence about how he had practised Falun Gong in China.[8] At the hearing before the Tribunal the applicant claimed for the first time that he was involved in a “small range” of Falun Gong related activities. The Tribunal also found that the applicant’s account of these activities – which the applicant claimed consisted of some 200 practitioners meeting and practising in front of a government building – was implausible because by that time the Ministry of Public Security issued a “circular” forbidding such activities.[9]
c)The applicant introduced a number of significant new claims at the hearing before the Tribunal. The applicant claimed that, apart from his claimed arrest and detention in 2010 and 2014, he had been arrested in 2008 and 2012.[10]
d)The applicant provided vague and unconvincing evidence in relation to his claimed release from detention. He claimed he was detained for 15 days in 2014, but when the Tribunal asked the applicant why he had been released he initially said that those who detained him only selected a few healthy people to send them to a secret place for their organs to be harvested, but, when further asked, the applicant said he just got lucky. Similarly, when asked why he was released in 2012 from detention, the applicant initially said that was the way local police operate, but then said they only select healthy people to send them away to harvest their organs.[11]
e)In his application for a protection visa the applicant stated he resided in a single address in Beijing from July 2004 until his departure from China. Before the Tribunal, on the other hand, the applicant said he lived at multiple different addresses in Beijing.[12]
f)In his protection visa application the applicant said he attended a particular technology institute, and he held a degree in industrial administration. Before the Tribunal, however, the applicant said that after he completed his schooling he attended a technical college but, after about one year, he left the college without any qualification.[13]
g)In his protection visa application the applicant said he worked in a pharmacy in Beijing from 2007 to 2014, but before the Tribunal the applicant said he started working in a pharmacy in Beijing in 2005. Further in his protection visa application he said he worked as a quality control manager at a pharmaceutical company, but before the Tribunal the applicant said that the only positions he held at the pharmaceutical company were senior sales person, sales person, and warehouse manager.[14]
h)Before the Tribunal the applicant claimed for the first time that his employers at the pharmaceutical company assisted him to get a visa to visit Australia because they knew the applicant would continue to face persecution in China.[15]
i)Before the Tribunal the applicant claimed he was able to leave China on his own passport without difficulty because he paid a bribe and asked friends to build a network to get his records removed so that he would not be detected at the airport. The applicant had not made this claim on any earlier occasion.[16]
j)Before the first Tribunal the applicant displayed a very limited knowledge of Falun Gong. In particular, he was ignorant of the five Falun Gong exercises. Before the Tribunal the applicant demonstrated some understanding of Falun Gong, but he remained unable to name the five Falun Gong exercises.
[5] CB145, [25]
[6] CB145, [27]
[7] CB145, [28]
[8] CB146, [31]
[9] CB146, [32]
[10] CB146, [33]
[11] CB147, [35]
[12] CB147, [35]
[13] CB147, [36]
[14] CB147, [37]
[15] CB147, [38]
[16] CB148, [39]
The Tribunal referred to documents the applicant had submitted in support of his claims. The Tribunal does not in its reasons identify the documents, but it appears the Tribunal intended to refer to the documents the applicant sent to the Tribunal by email on 11 August 2016. These consist of three documents, all of which are in English.[17] Two of the documents purport to be detention warrants, and one is a “Penalty receipt”. The Tribunal noted that fraudulent documents are commonly used in support of visa applications. The Tribunal in any event did not give any weight to the documents the applicant provided, “given the fundamental lack of credibility within his evidence”.[18]
[17] CB131-134
[18] CB149, [43]
The Tribunal accepted the applicant attended Falun Gong practice sites in Sydney, and acquired some knowledge of Falun Gong in Australia. Because the Tribunal found there was a “significant lack of credibility in the applicant’s evidence”, the Tribunal was not satisfied that the applicant’s conduct in Australia has been otherwise than for the purpose of strengthening his claim to be a refugee and, in determining whether the applicant had a well-founded fear of persecution, s.91R(3) of the Migration Act 1958 (Cth) (Act) required the Tribunal to disregard that conduct.[19]
[19] CB149, [45]
The Tribunal considered the applicant’s claims based on his wife having had a second child in breach of China’s family planning laws. After setting out the applicant’s claims the Tribunal noted the applicant said that nothing further happened to him after he paid the necessary fine. The Tribunal also noted that when asked whether the applicant believed he would be at risk of harm if he returned to China because of China’s family planning laws, the applicant said that his child initially had difficulty attending school because the government refused to put her name on the household register, but that problem has since been resolved.[20] Notwithstanding the concerns the Tribunal said it had about the applicant’s overall credibility, it was prepared to accept the applicant’s account of his past experiences with the birth of his second child. The Tribunal found, however, that “this matter has been fully resolved and the applicant has not encountered any problems since 2010 or 2011”.[21]
[20] CB150, [49]
[21] CB150, [50]
Given these findings, the Tribunal was not satisfied the applicant met the criteria for the grant of a protection visa prescribed by s.36(2)(a) or s.36(2)(aa) of the Act.
Grounds of application
The applicant, who is not legally represented, relies on the following grounds of application (errors in original):
1.AAT HAS DISRIMINATIO ON ME, FAILED TO CONSIDER MY REAL SITUATION AND MY EVIDENCE.
2.AAT IS UNFAIR TO ME, I AM SEEKING JUSTICE
At the hearing I directed the applicant’s attention to these grounds. I first asked in what manner he claimed the Tribunal discriminated against him. The applicant made a number of claims. The Tribunal member laughed at him; the Tribunal member smiled at him in a mocking manner; and the Tribunal member asked the applicant misleading questions. I also asked the applicant in what way he claimed the Tribunal was unfair to him. The applicant said he was telling the truth and he provided truthful evidence. The applicant agreed that what he intended to submit by this is that the Tribunal was unfair because it did not believe him.
Did the Tribunal laugh or smile mockingly at the applicant or ask misleading questions?
The applicant was unable to tell me when during the hearing before the Tribunal the Tribunal member laughed or smiled at the applicant, or in relation to what question or questions the applicant says the Tribunal member laughed or smiled. When I asked whether his claims related to the member of the first Tribunal or the Tribunal, the applicant said he was not sure. I informed the applicant that I was only concerned with what occurred before the Tribunal, because the decision of the first Tribunal had been set aside. At the end of the hearing I granted the applicant leave to file and serve by 24 August 2018 an affidavit, together with the recording of the Tribunal hearing, in which he was to identify, by reference to time, each occasion the applicant contends the Tribunal member laughed at the applicant.
I explained to the applicant the order and what I proposed to do as follows:
Now, just to be absolutely clear, Mr Applicant, what I expect you to do in that affidavit is to say something along these lines: “I exhibit the audio recording of the hearing before the tribunal on 12 August 2016. The tribunal member laughed at me at these points of the audio recording: (a) 30 minutes, 33 minutes, 50 minutes” – whatever it is. Do you understand what I’m saying?
THE INTERPRETER: I understand.
HIS HONOUR: Because the audio recording will have a timeline. It will start at zero, I think, and it will record the time. So if the first occasion you say there was laughter 15 minutes into the hearing, your affidavit should say the tribunal member laughed at me 15 minutes into the hearing because the idea will be I will read that affidavit and will put the CD into my device in my office. I will listen to it, and I will determine whether there’s laughter there or not.
THE INTERPRETER: Okay.
HIS HONOUR: That’s the idea. Now, let me tell you even if there is laughter there, that by itself may not mean you succeed. All right.
THE INTERPRETER: I understand.
HIS HONOUR: Laughter might be relevant to whether there might be an apprehension of bias, but they’re matters that I will consider in my judgment. All right.
THE INTERPRETER: I understand.
HIS HONOUR: Now, if you do not file this affidavit by the 24th, I am going to assume that, in fact, you do not claim in relation to the second tribunal member that there was any laughter at you and that perhaps you mistook what occurred in the second tribunal hearing with what occurred on the first tribunal hearing, but whatever the reason, if you do not file that affidavit, I will assume that you no longer make the claim that the tribunal member laughed at you. Do you understand?
THE INTERPRETER: Yes.
Before I made the order, the applicant informed me that he held a copy of the audio recording of the hearing before the Tribunal, and that he would be able to listen to the recording:
HIS HONOUR: All right. I’m thinking about giving you time to put on an affidavit which identifies – sorry, an affidavit together with the audio recording, in which you identify, in your affidavit, the time on the recording at which you say the tribunal member laughs at you. That’s what I’m proposing or thinking of doing at the moment. But before I can even do that, I’m bound to ask you why you haven’t done it before, because you should have done it, if you’re going to rely on something like that.
THE INTERPRETER: I have a CD. But I don’t have the device to play that CD.
HIS HONOUR: Well, does that mean if I give you an opportunity, you won’t be able to identify from the CD where the laughter occurs?
THE INTERPRETER: No.
HIS HONOUR: You won’t be able to?
THE INTERPRETER: I will be able to play it, your Honour.
The applicant filed an affidavit on 24 August 2018 in which he deposed as follows (errors in original):
1.I have not received the hearing CD from AAT yet, I wish I will be given more time in providing My outline of being teased during be heard.
2.From my memory, I was forced to say more and more about the Falun Gong. The knowledge and answer I gave is being ignored and being discriminated.
The first paragraph of this affidavit assumes a state of affairs that is contrary to what the applicant represented to me at the hearing; namely, that he does not hold a copy of the audio recording of the hearing before the Tribunal, and that he is instead waiting for a copy to be provided to him. The applicant has not provided any further affidavit.
In these circumstances, I find there is no evidence to support the claim the applicant made at the hearing before me that the Tribunal member laughed at the applicant. I also find there is no evidence that supports the applicant’s claim that the Tribunal member smiled in a mocking manner at the applicant. I appreciate that such a claim is inherently difficult to prove. Nevertheless, the applicant was unable to identify at which point of the hearing or in relation to which subject matter the Tribunal member so smiled. I also find there is no evidence the Tribunal asked the applicant any misleading questions. There is not in evidence before me a transcript of the hearing before the Tribunal, and the applicant was unable to identify any example of his having been misled by any question the Tribunal asked.
Was the Tribunal otherwise unfair?
That the Tribunal found the applicant not to be a credible or truthful witness does not by itself manifest any unfairness. The Tribunal identified the applicant’s claims, it questioned the applicant about the matters it came to consider reflected adversely on the applicant’s credibility, and, unfortunately for the applicant, concluded the applicant was not a witness of truth. The Tribunal relied on matters on which it was reasonably open to it to rely to conclude the applicant was not a witness of truth.
The applicant’s affidavit
Although the matters deposed to in the applicant’s affidavit filed on 24 August 2018 go beyond what my order permitted, it would be convenient if I address the claims the applicant made in that affidavit.
a)First, the applicant deposed he was teased during the hearing. That is not what the applicant said at the hearing before me, although perhaps the difference between what the applicant was interpreted as saying at the hearing before me and what the applicant deposed in his affidavit may be attributable to difficulties the applicant may have in expressing himself in English in the affidavit. In any event, there is no evidence to support the claim the applicant was teased during the hearing before the Tribunal.
b)Second, the applicant says he was “forced to say more and more about Falun Gong”. Two things may be said about that claim. First, the applicant cannot reasonably be understood as saying anything more than the Tribunal asked the applicant questions about Falun Gong. So understood, the Tribunal did not discriminate against the applicant or otherwise treat him unfairly. The Tribunal was entitled to ask the applicant questions about his claims. Second, it is not apparent from the Tribunal’s reasons that the Tribunal asked the applicant many questions about Falun Fong. At any rate, the Tribunal’s reasons indicate the Tribunal asked the applicant questions about matters other than Falun Gong.
c)Third, the applicant claims the Tribunal ignored answers the applicant gave. The applicant, however, does not identify the answers he claims he gave that were ignored by the Tribunal.
There is nothing in the applicant’s affidavit filed on 24 August 2018, therefore, that gives rise to any arguable case of jurisdictional error by the Tribunal.
Section 438 certificate
At the hearing the Minister read an affidavit made by Ms Rayment on 24 July 2017. Ms Rayment, who is a solicitor employed by the solicitors for the Minister, refers to a certificate purportedly issued pursuant to s.438 of the Act (438 Certificate),[22] and exhibits the documents covered by that certificate.[23] The Minister accepts the 438 Certificate, and the documents covered by that certificate, were not disclosed to the applicant; and also accepts the 438 Certificate is invalid. The Minister submitted, however, that the Tribunal did not act on the 438 Certificate and, in any event, the Tribunal’s not disclosing to the applicant the 438 Certificate, or the documents covered by that certificate, did not give rise to any practical injustice. The Minister relied on the Full Federal Court’s judgment in BEG15 v Minister for Immigration and Border Protection,[24] and the judgment of Barker J in AVO15 v Minister for Immigration and Border Protection.[25] After the hearing before me the High Court handed down judgment in three appeals, one of which was from the orders of the Full Federal Court in BEG15. Those judgments are to be found in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (SZMTA).[26]
[22] A copy of the 438 Certificate is at CB110
[23] Exhibit BR-1.
[24] [2017] FCAFC 198, at [33]
[25] [2017] FCA 566, at [87], [91]
[26] [2019] HCA 3
There are two reasons for judgment in SZMTA, one given by Bell, Gageler, and Keane JJ (plurality judgment), and the other given by Nettle and Gordon JJ (non-plurality judgment). All justices were of the opinion that the issue to the Tribunal of a 438 certificate or purported 438 certificate obliged the Tribunal to disclose to the applicant the 438 certificate.[27] There is a difference between the plurality judgment and the non-plurality judgment about the consequences of the Tribunal’s failing to disclose to the applicant the issue of a 438 certificate.
[27] [2019] HCA 3, [28], [115]
According to the plurality judgment, the Tribunal’s failure to disclose a 438 certificate may give rise to jurisdictional error. Whether or not it does so depends on whether “materiality is put in issue” and, where it has been put in issue, whether the applicant discharges the burden that lies on him or her to show that the Tribunal’s failure to disclose the 438 certificate was in fact material.[28] Here “materiality” in relation to the Tribunal’s failure to comply with its obligation to disclose the existence of a 438 certificate denotes the affirmative answer to the hypothetical question: could compliance realistically have resulted in a different decision?[29] The “question of materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof”.[30]
[28] [2019] HCA 3, [4]
[29] [2019] HCA 3, [45]
[30] [2019] HCA 3, [46]
According to the non-plurality judgment, a breach by the Tribunal of an obligation to disclose a 438 certificate gives rise to a jurisdictional error.[31] Unlike the plurality judgment, however, whether or not the breach is material is not relevant to whether the Tribunal made a jurisdictional error. In other words, materiality of error is not a criterion of jurisdictional error.[32] Materiality, however, may be relevant to whether the Court should refuse relief.
[31] [2019] HCA 3, [117]
[32] [2019] HCA 3, [92]
The question, therefore, is whether the Tribunal’s failure to disclose the 438 Certificate to the applicant, or the document covered by the certificate, was material to the Tribunal’s decision. In practical terms, the answer to that question turns on whether any of the documents covered by the 438 Certificate could reasonably be considered to be relevant to the applicant’s claims. Those documents are as follows:
a)The first document is folio 34. It is titled “Protection Visa Application VALIDITY CHECK”. It is a checklist to determine whether the formal requirements for the making of protection visa application have been met. Because there was no question about the validity of the protection visa application the applicant lodged, the information contained in this document is irrelevant to the issues before the Tribunal.
b)The second document is folio 36. It is titled “IDENTIFICATION TEST: PROTECTION VISA APPICANTS”. It is designed to assist in determining whether a person who applies for a protection visa is the person the applicant claims he or she is. The information contained in this document is irrelevant to the issues before the Tribunal because the identity of the applicant was not an issue.
c)The third, fourth, and fifth documents are folios 62, 63 and 64. These documents relate to applications the applicant made for a Highly Specialised (Subclass 400) visa, a Business Visitor (Subclass 600) visa, and a Business (Short Stay) (Subclass 456) visa. The documents are irrelevant to any issue that was before the Tribunal.
d)The sixth document is folio 79. It is a checklist about whether there are any documents on file to which s.437 or 438 of the Act apply. The document records there are no such documents on the file. Folio 79, therefore, is also irrelevant to any issue before the Tribunal.
e)The seventh document is folio 89, and it is a copy of a letter dated 20 January 2016 from the Tribunal to the Secretary of the Department of Immigration and Border Protection (Department) enclosing a copy of the first Tribunal’s decision, and the documents of the Department in relation to the applicant. The document by itself is irrelevant to any issue that was before the Tribunal.
f)The eighth document is folio 90. It is an email from an officer who holds the position within the Department of “Administration Officer – Protection Processing Administration” addressed to “OSA Recall Requests” and copied to “OPNSW AAT Liaison”, noting that the Tribunal requested two files that are located in “Recall”, and requesting that the files be forwarded to “my address”. The email is not dated, but it is reasonably open to infer, and I do infer, that the email was sent after 23 March 2016, being the date on which this Court set aside the first Tribunal’s decision. It is also reasonably open to infer, and I do infer, that the files the email notes the Tribunal requested are the files the Tribunal had returned to the Department under cover of its letter dated 20 January 2016. The email that is folio 90 by itself is irrelevant to any issue before the Tribunal; and although the files to which it refers are relevant, there is nothing to suggest that the files consisted of anything more than what the Secretary of the Department had previously sent to the first Tribunal under s.418 of the Act after the applicant applied to the first Tribunal for review of the delegate’s decision, and which the Tribunal had returned to the Department by the letter dated 20 January 2016 (being the document that is folio 89).
g)The ninth and final document is folio 91. It is an email from a “Records Team Member” within the Department to “OSA Recall requests” sent on 30 March 2016 acknowledging the request made in the email that is folio 90. The email does not in terms identify the files that were the subject of the request, but it is reasonable to infer, and I do infer, that the files to which it refers are the files referred to in the email that is folio 90. The email sent on 30 March 2016 by itself is irrelevant to any issue before the Tribunal; and although the files to which it refers are relevant, I have found there is nothing to suggest that the files consisted of anything other than what the Secretary of the Department was required to send to the Tribunal under s.418 of the Act.
I should record that at the hearing before me I adjourned the hearing for short period of time to permit the applicant, with the assistance of the interpreter, to acquaint himself with the documents covered by the 438 Certificate. The applicant made no submission in relation to the documents.
The Minister put in issue the materiality of the document covered by the 438 Certificate. I am not satisfied that the Tribunal’s complying with its obligation to disclose to the applicant the 438 Certificate or any of the documents covered by that certificate could realistically have resulted in a different decision. I am also satisfied that even if the Tribunal disclosed to the applicant the 438 Certificate, or all of the documents covered by that certificate, that could not have made any difference to the outcome of the review. In other words, I am satisfied that the Tribunal’s failure to disclose to the applicant the 438 Certificate or any of the documents covered by it, did not operate to deprive the applicant of the possibility of a successful outcome.
Conclusion and disposition
The applicant has failed on the grounds on which he relies; and the Tribunal’s decision is not liable to be set aside because it failed to disclose to the applicant the 438 Certificate or any of the documents covered by that certificate. I propose, therefore, to order that the application be dismissed.
I will consider the question of costs when I pronounce my order dismissing the application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 26 July 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Statutory Construction
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