Amo17 v Minister for Immigration, Citizenship, Migration and Multicultural Affairs
[2021] FedCFamC2G 114
•23 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMO17 v Minister for Immigration, Citizenship, Migration and Multicultural Affairs [2021] FedCFamC2G 114
File number: MLG 252 of 2017 Judgment of: JUDGE DAVIS Date of judgment: 23 September 2021 Catchwords: MIGRATION – protection visa – judicial review of decision affirming refusal of protection visa – jurisdictional error – where conceded that the Tribunal did not fulfil its obligations under s 438 – where the applicant was not given meaningful opportunity to respond to whether s 438 applied – where the preconditions in s 438(1)(a) or (b) were not met – whether the error was material to the Tribunal’s decision – application dismissed Legislation: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Item 28 of sch 5; Item 12 of sch 5; ss 3(1), 2.
Migration Act 1958 (Cth) ss 438 (1)(a), (1)(b), (3)(b), 91R, 91R(3).
Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24.
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.
Minister for Immigration and Border Protection v WZARH (2015) 326 ALR 1.
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.
Division: Division 2 General Federal Law Place: Melbourne Number of paragraphs: 129 Date of last submission/s: 26 April 2021 Date of hearing: 20 and 26 April 2021 Counsel for the Applicant: Appearing for himself in person Counsel for the Respondents: Mr Rowan Minson ORDERS
MLG 252 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMO17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Application be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DAVIS:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 4 January 2017. By that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa (‘Visa’).
By his application filed in this Court on 8 February 2017 (Application), the Applicant seeks the following relief:
(a)An order that the decision of the Tribunal be quashed.
(b)A writ of mandamus directed to the Tribunal, requiring it to determine the Applicant’s Application according to law.
BACKGROUND
The Applicant is an Iranian national. He arrived on 4 December 2012 as an unauthorised maritime arrival. The Applicant applied for the Visa on 27 March 2013.
On 16 October 2014, the Applicant attended a protection visa interview. On 27 November 2014, a delegate of the Minister (the First Respondent to this proceeding) refused to grant the Applicant the Visa.
On 2 December 2014, the Applicant applied to the Refugee Review Tribunal – as, in effect, the Tribunal then was – for review of the delegate's decision. The Refugee and Immigration Legal Centre, who then represented the Applicant, filed pre-hearing submissions on his behalf on 30 May 2016.
On 12 September 2016, a hearing was held at the Tribunal. The Applicant remained represented by the Refugee and Immigration Legal Centre Legal which, by then, had changed its name to Refugee Legal. His then legal representative attended the hearing and, on 27 September 2016, provided a post-hearing submission to the Tribunal.
On 4 January 2017, the Tribunal affirmed the delegate’s decision not to grant the Applicant the Visa, stating its reasons.
The Applicant claimed to be entitled to the Visa under s 36(2)(a) and/or (aa) of the Migration Act 1958 (Cth) (Migration Act), in effect, because of the risks of persecution and/or significant harm posed to him upon his return to Iran.
In part, the Applicant claimed that those risks arose as a result of his conduct in Australia – in particular his conversion to Christianity and online activities by which he had criticised the Iranian regime.
The Tribunal noted that it had “a number of critical credibility concerns about the applicant’s history as a recent Christian convert”.[1] For example, the Tribunal found that:
While the applicant was able to outline the difference between the Old Testament and the New Testaments of the Christian Bible, the applicant was unable to mention the first four books of the New Testament as either the Gospel, the Gospels according to Matthew, Mark, Luke or John, books by close associates of Jesus or the books about Jesus’s life and mission.
[1] Tribunal’s reasons at [68].
Furthermore, again by way of example only, the Tribunal found at [70] that:
The applicant was asked into which religion was Jesus born; to which the applicant responded ‘Christianity’. The Tribunal would have expected a claimed committed Christian convert, baptised some eighteen months ago and who claimed to have attended bible classes to have least been able to identity that Jesus was born into the Jewish faith tradition.
Ultimately, the Tribunal said of the Applicant’s Christianity:
The Tribunal finds the overall testimony at the scheduled hearing to have been weak, vague and lacking insincerity as a genuine Christian convert. In the context of the late timing of the applicant’s conversion to Christianity after the delegate’s refusal decision, the Tribunal places considerable weight on the applicant’s lack of knowledge and his platitudinous responses about the applicant’s claimed conversion to Christianity during the scheduled hearing over other more supportive evidence.[2]
[2] Ibid at [79].
The Tribunal determined to disregard the Applicant’s conversion to Christianity and online activities on the basis that the Applicant had not satisfied the Tribunal that he had not engaged in that conduct for the purpose of strengthening his claim to be a refugee. As developed below, the Tribunal’s legislative basis for doing so was s 91R of the Migration Act, which is no longer in force. When the repeal of that section came into effect is relevant to the disposition of this Application and I deal with this below.
The Applicant claimed that, if he were to be returned to Iran, amongst other things, he would relevantly be at risk of persecution and/or significant harm as a result of his dealings with the Basij, “a volunteer paramilitary militia which operates under, and serves to augment, the Iranian Revolutionary Guards Corps”.[3]
[3] Tribunal’s reasons at [44].
The Applicant claimed that, in 2009, he was at the offices of a friend’s company where he observed, but did not participate in, a demonstration which occurred soon after the presidential elections in Iran that year. He claimed that members of the Basij, arrived and started hitting one of the employees. The Applicant claimed that he and others fought back causing the Basij to release the employee and depart the scene.
He claimed that some time later the Basij attended his home, arrested and then imprisoned him. He says that he was beaten before being released three days later. According to the Applicant, thereafter he remained a person of interest to the Basij who attended his home and sometimes interrogated him.
After a detailed evaluation of the Applicant’s credit, the Tribunal’s assessment was that the applicant “lacks overall credibility as a witness”.[4] Amongst other things, the Tribunal “made a number of adverse credibility findings about the Applicant’s claims of past incidents of harm and the real chance or real risk he faces, now and into the foreseeable future”.[5]
[4] Tribunal’s reasons at [96].
[5] Tribunal’s reasons at [96]
The Tribunal found at [92] that the Applicant’s claims to being arrested, detained, interrogated and imprisoned were unpersuasive. For example, it states that country information:
indicates it is generally political activists who are perceived to have cross [sic] red lines that are often charged and sentenced or are monitored once released from detention; however the applicant does not claim to have been an activist or a leader but just someone who was caught up in the maelstrom of events and then was implausibly singled out for his political opinion.
The Tribunal also took into account the fact that the Applicant had left and returned to Iran numerous times since the 2009 incident. It found at [93] that:
The Tribunal also places considerable weight on the applicant having re-entered Iran on three occasions despite claiming he was interrogated or harmed on arrival each time. Had the applicant had a genuine personally-held fear of persecution for his imputed political opinions which was sincere and urgent for his imputed political opinion it would have been reasonable to have expected the applicant to have taken earlier opportunities to seek safety or asylum.
Ultimately, the Tribunal found that it:
…[did] not accept that the applicant is a person who faces any real chance of serious harm because of his political opinion, imputed or otherwise, arising from claimed incidents of past harm or harassment or faces the prospect of being arrested for any outstanding charges, summons or court orders, in absentia or otherwise, leading to his arrest and detention, either on arrival or anywhere within his country of origin and reference for a Convention or a non-Convention reason, now or into the reasonably foreseeable future. Based on the same adverse credibility findings, the Tribunal does not have any substantial reasons for believing the applicant faces, as a necessary and foreseeable consequence of being removed from Australia to Iran, a real risk of significant harm of any kind arising from the same set of claims.[6]
[6]Tribunal’s reasons at [97].
APPLICATION IN THIS COURT – RELEVANT PROCEDURAL HISTORY
Again, the Applicant, who then remained represented by Victoria Immigration Lawyers, filed his Application on 8 February 2017, together with his affidavit in support.
On 16 August 2017 Registrar Ryan made orders which provided, amongst other things, that the Application be listed for final hearing before Judge Wilson (as his Honour then was) on 16 June 2020. By those orders, Registrar Ryan made directions ancillary to the listing of the matter for trial – including directions for the filing and service of written submissions by the Applicant and the First Respondent.
On 26 March 2021, orders were made by consent in chambers by Judge Blake. The effect of these orders was to extend the time frames by which the Applicant and the First Respondent were to file and serve written submissions.
Further orders were made by consent in chambers by Judge McNab on 8 April 2021. The relevant effect of those orders was further to extend the time by which, pursuant to the orders of Judge Blake, the Applicant and the First Respondent were to file and serve written submissions to 8 April 2021 and 16 April 2021, respectively.
CONDUCT OF THE HEARING ON 20 APRIL 2021
The matter came before me for final hearing on 20 April 2021.
On that day, the Applicant appeared unrepresented and with an interpreter.
The Minister, was represented by Mr Minson of counsel.
The Second Respondent had taken no active role in the proceeding and did not appear.
At the commencement of the proceeding, I invited the Applicant to tell me what it was that he would like to say, in support of his application, to the effect that the Tribunal was wrong in its decision to affirm the decision of the delegate to refuse his Visa.
The Applicant stated that:
I am not very familiar with the rules and regulations regarding Migration Acts in Australia…because all of these things are, like, technical material with technical terminology which I’m not familiar with.
The Applicant said: "I would “like, a number of minutes to express myself and explain what is in my head, and like I said, they are not necessarily within the frameworks of legality and professionality, and these kinds of things.”
The Applicant then, in effect, explained that he had found a new home in Australia and left behind the problems which he had in his home country. He said that he had suffered hardship and loss when his application for the Visa was refused.
He went on to describe his dealings with lawyers in relation to his Application. He said that his first set of lawyers had told him, when a court date was set, that they could not attend court. The Applicant said that recently he had retained an alternative solicitor but that “after reading and reviewing my case and all the documents that [he had]” they told him: “I cannot take on this matter, I cannot be your lawyer.”
The Applicant expressed the desire to obtain legal representation.
The Applicant made no formal application for an adjournment, nor did he file any evidence in support of such application. However, during the course of his submissions, the Applicant made it sufficiently clear that he was, in effect, applying to have the hearing adjourned for the purpose of obtaining legal representation.
I declined to grant the adjournment for reasons which I gave orally on 20 April 2021.
One of the reasons which I gave for declining the adjournment was that – as the Minister had submitted – there was nothing before the Court to indicate that granting the adjournment would enable the Applicant to obtain legal representation.
Indeed, the Applicant submitted that he had made significant endeavours to find a new lawyer – without success. The steps which he said that he had taken in this regard included consulting the Asylum Seeker Resource Centre, who he told me were unable to assist him to find a lawyer.
Further, at that hearing, in another context, the Applicant had said that he was not a wealthy person and could not afford expensive lawyers within the short time between his first lawyers ceasing to represent him and his subsequent engagement of a second firm of solicitors. The timing with respect to this change of solicitors, and the ultimate cessation of the Applicant’s legal representation, are topics which I develop below.
The First Respondent also submitted that the adjournment should be refused because it was inutile in that the Applicant’s case was hopeless. I considered that it was not necessary for me to rule on this argument. I did not do so and stated that this was not a basis for my refusal of the adjournment application.
After refusing the adjournment, I again invited the Applicant to make submissions, as best as he could, as to why it was he said that the Administrative Appeals Tribunal made a mistake in affirming the decision of the delegate to refuse his Visa application.
The Applicant replied that: “well, in terms of legal, or providing legal submissions to the court, I have nothing to say.”
I reserved my decision.
RE-LISTING OF THE MATTER FOR MENTION ON 26 APRIL 2021
While further considering the materials with a view to making a decision, it became apparent to me that, when not adjourning the matter on 20 April 2021, I had not or not fully appreciated two matters of procedural history.
Both related to the timing of the ultimate cessation of the Applicant’s legal representation.
As I have observed above, the Applicant had been represented by Victoria Immigration Lawyers. Although the Court file seems unclear on when they ceased acting for him, on 20 April 2021 the Applicant had submitted, in effect, that this was 25 or 26 days before that hearing date.
On 1 April 2021 Bardo lawyers commenced acting for the Applicant.
When Judge McNab made orders on by consent on 8 April 2021, the Applicant remained represented by Bardo lawyers.
However, on 9 April 2021, Bardo Lawyers filed a notice of intention to withdraw.
Accordingly:
(a)First, this left the Applicant with eleven days in which to find a new lawyer prior to the hearing.
(b)Secondly, when orders were made by consent in chambers by Judge McNab on 8 April 2021 – including a direction for the filing and service by the Minister of written submissions on 16 April 2021 – the Applicant likely would have assumed that the he would be legally represented when those submissions were filed and served, eight days later and very shortly prior to trial.
In light of my consideration of these matters, I re-listed the mater for mention on 26 April 2021 with a view to hearing the parties on whether the Applicant should be given further time to find legal representation.
At the hearing on 26 April 2021, I observed that the Minister’s written submissions had been filed and served on 16 April 2021 and, although this was in accordance with orders made by consent by Judge McNab on 8 April 2021, it was a relatively short time before the listed hearing on 20 April 2021.
I further observed that I had directed that the submissions be translated to the Applicant at the commencement of the hearing on 20 April 2021, and was informed by the interpreter that this had occurred. Nonetheless, in the event, the submissions were filed and served when the Applicant was unrepresented.
I also noted that having regard to the difficulties which the Applicant had encountered in finding a new lawyer in the circumstances, as submitted by Mr Minson on behalf of the Minister on 20 April 2021, there had to be at least a very significant prospect that he would be unable to do so.
Despite this I indicated that – subject to hearing from the parties – I was considering giving the Applicant more time to endeavour to find a lawyer to make submissions on his behalf.
In all of the circumstances, I proposed not to finalise my judgment in this matter prior to 7 June 2021.
I told the Applicant that if, during that time, he were to secure legal representation and wished those representatives to make submissions on his behalf, he should have them contact my chambers and I would relist the matter for hearing in short order.
I explained that should that occur, I would of course allow the Minister to make whatever further submissions he considered appropriate in the circumstances.
However, I told the Applicant more than once that he should understand that if he were not able to secure further legal representation in that period then I would proceed to deliver judgement.
Counsel for the First Respondent did not oppose this course and the Applicant agreed with it.
Accordingly, this is the course which I adopted for reasons which I gave orally on the day.
In essence, those reasons were that I considered that the Applicant should be given a further opportunity to obtain representation in light of:
(a)My appreciation of the relevant matters of procedural history referred to above in this section.
(b)The fact that, at the hearing on 20 April 2021, the Minister’s counsel had conceded that the Minister would suffer no prejudice – other than what he described as systemic prejudice – if the Applicant were granted more time to find legal representation.
(c)The fact that the Minister’s counsel did not oppose the course which I proposed and the Applicant agreed with it.
On 1 June 2021, my Chambers wrote to the parties, relevantly, in the following terms: “If [the Applicant has] found legal representation, please advise chambers, urgently. Otherwise, his Honour will proceed to deliver judgment after 7 June.”
My chambers has received no response from the Applicant.
THE SUSBSTANCE OF THE APPLICATION FOR REVIEW
I set out below the Applicant’s grounds for review and some related matters.
I as have observed, the Applicant’s Application in this Court, which contained his grounds for review, were filed by Victoria Immigration Lawyers.
Ground 1
The Applicant’s first ground of review (Ground 1) is as follows:
The decision of the Tribunal is affected by jurisdictional error because the Tribunal did not comply with its obligations in relation to the certificate issued under s 438 of the Migration Act 1958 (Cth), including to give the Applicant an opportunity to seek a favourable exercise of the discretion under s 438(3)(b) of the Act.
Section 438 of the Migration Act 1958 provides as follows:[7]
[7] As submitted on behalf of the Minister, the section has not been relevantly amended.
“(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…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 significant 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.
The Minister’s submissions accurately record that:
The notified information concerned the delegate’s assessment of the Applicant’s identity using a template form. That assessment included the identification of spelling errors in the Applicant’s proffered identity documents and inconsistencies between the information in those documents and information given by the Applicant during his entry interview. However, the assessment concluded that the information available was sufficient to satisfy the client’s identity and that no further action was required…(emphasis added)
Put another way, the focus of the information which was the subject of the certificate granted by the Tribunal related to the question whether the Applicant had sufficiently identified himself. In the event, the Tribunal accepted the Applicant’s claimed identity, I infer other than by reference to the template form. I infer this on the Tribunal’s reasons at [57] and [60]. At [57], the Tribunal notes that the Applicant “has a number of identity documents on the department file with translations from an accredited translator, including a national identity card and a drivers [sic] licence”. That finding concludes with a footnoted reference to documents provided by the Applicant and not the template form. Moreover, the Tribunal did not make reference to the template form other than for the purpose of disavowing having taken it into account. It did this at [60], which is extracted below.
Further, an affidavit sworn by Laura Rose Butler of the Australian Government Solicitor on behalf of the Minister on 30 March 2021 was read into evidence and relied upon on the question of materiality. That affidavit had been served on the Applicant prior to the final hearing before me. By that affidavit, the Minister exposed to the Applicant and the Court the material which was the subject of the s 438 certificate. The affidavit demonstrates that the material which was the subject of the certificate was in fact a template form directed to the question of the Applicant’s identity.
The Minister concedes that the Tribunal did not comply with its obligations under s 438 but submits that, in the circumstances, that failure was not material to the decision. The Minister submits that accordingly the Applicant does not make out his claim for jurisdictional error.
Ground 2
The Applicant’s second ground of review (Ground 2) is as follows:
“The decision of the Tribunal is affected by jurisdictional error because the Tribunal applied the wrong test in determining not to have regard to the Applicant’s conduct in Australia with respect to online activities opposing the Iranian regime. Section 91R was not part of the Act at the relevant time.”
Until it was repealed, s 91R(3) of the Act provided that:
(3) For the purposes of the application of this Act and the regulations to a particular person.
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol, disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Section 91R was repealed by s 3(1) and item 12 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Repealing Act).
I later develop the significance of these provisions to this Application. However, the short point is that the Repealing Act did not apply to the Applicant’s application for the Visa with the consequence that s 91R relevantly remained in force with respect to it.
FIRST RESPONDENT’S SUBMISSIONS
In his written submissions, the Minister addressed both of the Applicant’s grounds.
At the hearing on 20 April 2021, the Minister’s counsel had spoken very briefly to those submissions in aid of his argument that there was no utility in granting an adjournment because the Application was bound to fail.
The thrust of the Minister’s submissions was as follows:
(a)Ground 1 fails because, although the Minister concedes that: first, the Tribunal breached its implied duty of procedural fairness by not giving the Applicant an opportunity to be heard on whether the s 438 certificate should have been granted; and secondly, the certificate should not have been granted at all – such matters were not material to the Tribunal’s decision. The focus of this submission was that the Tribunal put no weight on the information which was the subject of the certificate and, in any event, that information concerned the question of the Applicant’s claimed identity – which the Tribunal accepted.
(b)Ground 2 fails because, although s 91R of the Migration Act was the subject of extant legislation to repeal it as at the time of the Tribunal hearing, the effect of the repeal did not relate to the Applicant’s application for the Visa.
CONSIDERATION
I now go on to consider the merits of each of the Applicant’s grounds.
Ground 1
In Relation to the s 438 certificate which is the subject of Ground 1, the Tribunal said in its decision at [60]:
Towards the beginning of the scheduled hearing, the Tribunal explained that the disclosure of some of the information was considered contrary to the public interest according to a notice on the departmental file and that the information pertained to the Applicant’s identity. The Tribunal explained to the Applicant that it considered that the information subject to s 438(1)(a) is of no direct relevance to the application on review and it would therefore not placed [sic] weight on it. While the Triobunal [sic] finds the certification had been validly issued, it also finds notes [sic] that none of the undisclosed information is information that the Tribunal would rely upon because its credibility and significance as well as the motivation behind it cannot be tested by the Tribunal in its consideration of the claims and evidence overall. (emphasis added)
The Minister conceded in his written submissions that there was a breach of implied procedural fairness:
The extract from the Tribunal’s reasons set out…above reveals that, consistently with its implied obligation of procedural fairness, the Tribunal disclosed the fact of notification to the Applicant. However, the Tribunal does not appear to have given the Applicant a meaningful opportunity to contest that s 438 applied to the notified information or to argue for a favourable exercise of one or both of the discretions conferred by s 438(3). In those circumstances, the Minister concedes a breach of the Tribunal’s implied obligation of procedural fairness. (references omitted)
The Minister also conceded in his written submissions that neither of the preconditions in s 438(1)(a) or (b) were met in respect to the notified information and that, accordingly, the notification purportedly given under s 438 was invalid:
The Minister concedes that disclosure of the notified information could not have been contrary to the public interest for a reason that could form the basis by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed; and that information was not given to the Minister or an officer of the Department in confidence…
Citing Minister for Immigration and Border Protection v SZMTA (SZMTA),[8] by his written submissions, the Minister had submitted that the Tribunal’s implied obligation of procedural fairness only constitutes jurisdictional error if it gives rise to a ‘practical injustice’. In that case at [38], Bell, Gageler and Keane JJ held that “For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice”; the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision” (references omitted; emphasis added).
[8] Minister for Immigration and Border Protection v SZMTA (2019) HCA 3; 264 CLR 421 (Bell, Gageler and Keane JJ).
Recently, this test was approved by the majority of the High Court in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (MZAPC): see, for example, [3], [32], [46], [59] and [60].
The Minister also submitted that the provision of an invalid certificate in breach of the s 438 limitations does not deny legal force to the decision unless that breach was material to that decision. I accept this submission, which is supported by SZMTA, for example, at [44].
The errors conceded by the Minister in connection with s 438 certificate were not inherently material to the decision.[9] The majority of the High Court in MZAPC has recently confirmed that, in these circumstances, in order to establish jurisdictional error, the Applicant bears the onus of establishing that the breaches were material to the decision which he seeks to impugn.[10]
[9] As to errors which are inherently material to the decision, see the analysis of the majority in MZAPC at [33].
[10] MZAPC for example, at [60].
Here, whether the breach was material is an ordinary question of fact which the Applicant must prove on the balance of probabilities.[11] As observed by the majority in SZMTA: “Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”[12]
[11] Ibid. See also SZMTA, for example, at [46].
[12] SZMTA at [46].
I accept the Minister’s submissions that there is no realistic possibility that the Tribunal’s decision could have been different had it not failed to comply with its obligations in relation to the certificate issued under s 438, as the Applicant complains in Ground 1. Accordingly, the Applicant has failed to discharge his onus of establishing that his complaints in this regard were material to the Tribunal’s decision. He has therefore failed to establish that his complaints which are the subject of Ground 1 impugn the decision.
I set out my reasons for this conclusion below.
As I observed above, the Tribunal stated at [60] that the material was of no direct relevance to the application and that it would therefore not place weight upon it. Likewise, in that the paragraph the Tribunal found that “none of the undisclosed information is information that the Tribunal would rely upon”.
On the particular facts of this case, as submitted by the Minister, I have no reason to doubt these statements and I accept them.[13] Subject to two matters, the failure of the Applicant to prove that I should not accept such statements and, if necessary, my acceptance of them, is sufficient to foreclose on the prospect of the non-disclosure of the information being material to the decision.
[13] In this regard, see, for example, CNY v Minister for Immigration (2019) HCA 50; per Edelman J at [111].
The first of these matters is the theoretical prospect that there is something in the undisclosed template form which could realistically have assisted the Applicant to obtain a different decision but which the Tribunal did not take into account when reaching its decision. That prospect is not available on the facts of this case. Again, the form was directed to the Applicant’s claimed identity, which the Tribunal accepted. There was nothing in the material that realistically could otherwise have assisted the Applicant to obtain a different decision.
The second of these matters is the capacity of anything in the template form subconsciously to affect the Tribunal’s decision or for the fair minded lay observer to have considered that it may have done so. It is convenient to deal with that issue below.
In deciding, on the particular facts of this case, to accept the Tribunal’s statements to the effect that it has put no weight on the undisclosed material, I have considered authority on the question of what a reviewing court might make of a statement by a decision maker whose decision is under review to the effect that it placed “no weight” on information before it which is undisclosed to one of the parties. Amongst other things, I have considered the cases referred to in this regard in both the majority[14] and minority[15] judgments of the Full Court of the Federal Court of Australia in Minister for Immigration & Multicultural & Indigenous Affairs v Applicant VEAL of 2002 [2004] FCAFC 179 (Applicant VEAL).
[14] See the cases referred to by Whitlam and Mansfield JJ in the majority at [62] to [77]: Johns v Release on Licence Board (1987) 9 NSWLR 103; Hall v Release on Licence Board (unreported, NSW Court of Appeal, 22 May 1989) at [20] to [21]; Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483; and NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 160.
[15] See the cases referred to by Gray J, in dissent, at [17] and [18]: Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550[15] at [552]; Roderick v Australian and Overseas Telecommunications Corporation Ltd (1992) 39 FCR 134 at [145];R v Gaming Board for Great Britain; Ex parte Benaim and Khaida [1970] 2 QB 417 at [431]
At [17] in Applicant VEAL, Gray J, in dissent, refers to Brennan J’s decision in Kioa v West (1985) 159 CLR 550.[16] At [629] of that case, Brennan J observed as follows:
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information 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. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. (emphasis added)
[16] Kioa v West (1985) 159 CLR 550.
In NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40,[17] Allsop J (as his Honour then was) considered the principles relating to a decision maker’s failure to reveal confidential material to a party. At [94] his Honour emphasised the significance of the content of the undisclosed material:
First, if there is a real risk of prejudice in the decision-making process in not disclosing the substance of material before the decision-maker, bona fide disavowal of reliance on it will not be sufficient to warrant the non-disclosure of the material. The sufficiency of the existence of a real risk of prejudice reflects what the Court of Appeal said in Johns, supra that the enquiry is whether the material could have influenced the decision, not whether in fact it did influence it. Secondly, there will be such risk where the material is, in the particular circumstances, credible, relevant and significant to the decision. This is to be judged leaving aside the disavowal. Relevant to this assessment will be, amongst other things, the quality of the material and the risk of subconscious influence. (emphasis added)
[17] NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40.
In all of the circumstances, I will not here repeat the digest of relevant cases provided in the judgments of the majority and minority respectively in the Full Federal Court’s decision in Applicant VEAL. However, in very general terms, the salient point for present purposes is that amongst those decisions there are authoritative statements to the effect that the mere fact that a decision maker, in its reasons, disavows placing weight on evidence which it has considered which is ‘credible, relevant and significant’[18] – but to which a party is blindsided – is insufficient to accord natural justice to that party.
[18] As, for example, it was described by Brennan J in Kioa at p629.
Again, in broad terms, one reason for this concern is that the decision maker may place subconscious weight on the undisclosed material.[19] Another is that "[t]he fair-minded lay observer might entertain the possibility that” it had done so.[20]
[19] See, for example, the observations of Gray J in Applicant VEAL at [17] (quoting from Brennan J’s judgment in Kioa, supra, at p629) and 23 as well as those of Whitlam and Mansfield JJ in [45] and [78]. See, also, the analysis in MZAPC at [72] citing with approval Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24, particularly at [116].
[20] See the analysis in MZAPC at [72] citing with approval Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24, particularly at [116].
The Full Court of the Federal Court’s decision in Applicant VEAL was appealed to the High Court.[21] That Court relevantly observed:
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.[22]
[21]Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88.
[22] Ibid at [14].
However, the High Court’s observations there largely concerned the content of the obligation to accord procedural fairness in a particular case. The breach here having been conceded, it is the question of materiality with which we are concerned.
In MZPAC the High Court observed with respect to Applicant VEAL at [60]:
Finally, the appellant places reliance on Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and on reasoning of Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH. Whilst it may be accepted that the breach of procedural fairness found to have occurred in VEAL was not analysed in terms of materiality, having regard to the centrality and prejudicial nature of the undisclosed information which had in fact been taken into account by the decision-maker despite being said to have been given “no weight”, it is not at all difficult to regard the outcome in that case as consistent with a requirement for a breach of procedural fairness to be material in order to result in jurisdictional error. The reasoning in WZARH on which the appellant places reliance was introduced with citation to Stead by express recognition that breach of the condition of procedural fairness implied into the statutory power in issue in that case would have been “material” only if it deprived the applicant of “the possibility of a successful outcome”. Implicit in the characterisation of the case as one in which “practical injustice” lay in the denial of “an opportunity which in fairness ought to have been given” was that the case was one in which the previously identifies threshold of materiality was met. (emphasis added; citations omitted)
I said above that in the particular circumstances of this case I had no reason to doubt, and, if necessary, I accept the Tribunal’s statements to the effect that it considered that the alleged impugned material was of no direct relevance to the application and that none of it was information that the Tribunal would rely or place weight upon. This is so for the following reasons.
First, again, the alleged impugned material was a template form which concerned the verification of Applicant’s claimed identity – which the Tribunal accepted, I infer, by reference to other identity documents which were supplied by the Applicant.
Secondly, as set out above, the Tribunal went through a detailed evaluation of the Applicant’s credit, without reference the alleged impugned material – other than for the purpose of stating that it had eschewed placing weight on it. Such evaluation led the Tribunal to make significant adverse credit findings against the Applicant.
These adverse credit findings arose from the Applicant’s evidence of specific matters underpinning his claims for protection. In particular, the adverse findings arose from his alleged dealings with, and cause to fear, the Basij as well as the purpose of his conversion to Christianity. The Tribunal rejected specific evidence by the Applicant in these regards as implausible. The Tribunal’s adverse credit findings against the Applicant were therefore not only explicable, but explained, by a detailed consideration of matters foreign to the undisclosed template form.
Thirdly, having considered both the undisclosed material – being the template form relating to the Applicant’s identity which was put before the Court by the Butler affidavit – and the Tribunal’s reasons for making its adverse credit findings against the Applicant, I do not consider that there is any realistic possibility that those credit findings would have been any different by reason of anything in the undisclosed material.
In this regard, there was certainly nothing in the template form concerning the Applicant’s identity which could be described as significant to the decision, let alone central and prejudicial.[23] Any inconsistencies in information provided by the Applicant which were referred to in the template form bear no analogue whatsoever to the ‘dob in’ letter which was concealed from the applicant in Applicant VEAL or the damning report of the CEO which was not disclosed in the NIB Health Funds case.
[23] See the analysis in MZAPC at [72] citing with approval Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24, particularly at [29].
Indeed, the significant adverse credit findings were not explicable by the material in the template form.
Fourthly, the Tribunal did not give active consideration to the exercise of its discretion under s 438(3)(a) to have regard to the undisclosed material in reaching its decision – other than for the purpose of disavowing having placed weight upon it. Such a consideration would have been required of the Tribunal if it were to do so. The majority in SZMTA observed that "[t]he drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act".[24] This passage was cited with approval by the majority in MZAPC.[25]
[24] SZMTA at [47].
[25] MZAPC at [66].
In MZAPC, the majority later observed that: “The fact that the Tribunal breached one procedural obligation by failing to disclose to the appellant the existence of the notification provides no foundation in the circumstances of the case for inferring that it had breached others.”[26] As noted above, in this case the notification was disclosed but other breaches were conceded.
[26] MZAPC at [75].
The majority held that: “Nothing in its statement of reasons for the final decision, or elsewhere in the evidence, contains any hint that the Tribunal failed to heed the automatic statutory consequences of the notification or that the Tribunal made a choice affirmatively to exercise the discretion conferred by s 438(3)(a) to take the offence of dishonesty into account but not the discretion conferred by s 438(b) to draw the information that it had about that offence to the attention of the appellant.”[27] In my view, that reasoning is apposite here.
[27] Ibid.
As will be apparent from the passages from MZAPC extracted below, the majority did not consider that the mere fact that the Tribunal looked at information covered by a notification for the purpose of considering exercise of the discretions conferred by s 438(3) constitutes it impermissibly having taken the information into account, let alone having done so in a way which was material to the decision.[28] As the extracts below demonstrate, the position may well be different if the material is “highly prejudicial”.[29] That has no relevance to this case.
[28] MZAPC at [69] to [72], extracted below. See, in particular, the final sentence in [69].
[29] MZAPC at [72].
I now turn to consider any question of the potential for the undisclosed template form to have a material subconscious impact on the Tribunal’s decision.
In MZAPC, the majority recently made the following observations on this issue:[30]
Before turning to examine whether the appellant discharged his burden of proving on the balance of probabilities that the Tribunal took potentially adverse information covered by the notification into account in making its final decision in the present case, it is appropriate to return to the topic of the potential for information covered by a notification to have had a subconscious impact on the Tribunal even if the Tribunal did not consciously take that information into account. The potential arises from the availability of an inference, which the appellant seeks to call in aid, that the Tribunal can be expected in the conduct of a review at least to look at information covered by a notification for the purpose of considering exercise of the discretions conferred by s 438(3)(a) and (b).
Quite apart from practical difficulties inhering in proof of a subconscious impact, there is a conceptual difficulty in fathoming how the potential for information covered by a notification to have had an impact on the subconscious of a member who constitutes the Tribunal can properly bear on the legal consequence of a failure to discharge the procedural obligation that it breaches through non-disclosure of a notification. As was noted in Minister for Immigration and Border Protection v SZSSJ, whilst "compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power", "[o]rdinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry". There is an oddity in conceiving of the opportunity to be heard of which the appellant was deprived by non-disclosure of the notification as a lost opportunity to present legal and factual argument to the Tribunal directed to the Tribunal's subconscious. There is a similar oddity in thinking that the Tribunal was required to examine its own subconscious in considering the exercise of the discretions conferred by s 438(3)(a) and (b).
Best is to conceive of the potential for information covered by a notification to have had a subconscious impact on the Tribunal not as bearing on the statutory consequence of non-compliance with the Tribunal's procedural fairness obligation to give notice of the notification but rather as having the potential to bear on the discharge of the Tribunal's distinct obligation of procedural fairness to ensure that what occurs in the conduct of the review "is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which [Pt 7] provides might reasonably apprehend that the [Tribunal] might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review".
In the case of potentially adverse information covered by a notification that has not been proven to have been taken into account by the Tribunal in making its decision, a question for a court on judicial review in an appropriate case can still remain whether the information was so "highly prejudicial" to the applicant for review that "the fair-minded lay observer, acting reasonably, would not dismiss the possibility that the [Tribunal] may have been affected by [the information] albeit subconsciously". So much was illustrated by the approach taken in CQZ15. The Full Court there found that a breach by the Tribunal of its procedural fairness obligation to give notice of a notification did not result in jurisdictional error because the Tribunal did not in fact take the highly prejudicial information covered by the notification into account in making the decision. The Full Court nevertheless went on to find that the decision was affected by jurisdictional error on the basis that "[t]he fair-minded lay observer might entertain the possibility that, having read the information for the purpose of considering the discretion in s 438(3), the Tribunal might have been subconsciously influenced by the prejudicial information ... in making its decision". The structure of that analysis undertaken by the Full Court was sound in principle.
(references omitted)
[30] MZAPC at [69] to [72]
I consider that the same matters to which I have referred above, in support of my conclusion that the Applicant has not proved that I should not accept the Tribunal’s statements disavowing having placed weight on the undisclosed material – and, if necessary, my acceptance of such statements – are sufficient for me to conclude that the Applicant has failed to prove that:
(a)a fair-minded lay observer, properly informed as to the nature of the procedure which Pt 7 of the Migration Act provides, might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the factual and legal questions that arose for its decision in this case;[31] and
(b)"[t]he fair-minded lay observer might entertain the possibility that, having read the information for the purpose of considering the discretion in s 438(3) the Tribunal might have been subconsciously influenced by the prejudicial information ... in making its decision" [32]
[31] To adopt the language of Kiefel CJ and Gageler J in CNY17 v Minister for Immigration and Border Protection[2019] HCA 50 at [17] as extracted by the High Court in MZAPC at [72].
[32] To adopt the language of Kenny, Bromberg and Anderson JJ of the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15C [2021] FCAFC 24 [116] as extracted in MZAPC at [72].
Indeed, if necessary, I would conclude that the same matters would be sufficient for the Minister to have satisfied me that the matters in (a) and (b) above do not apply here.
Alternatively, if, contrary to the above analysis, it were inapposite to accept the Tribunal’s statements to the effect that it placed no weight on the undisclosed template form, on the facts of this case I would remain of the view that the conceded breaches of s 438 were not material.
In MZAPC, the majority observed that “as was recognised by Mortimer J and emphasised by the Full Courts in both MZAOL and CQZ15, a necessary but not sufficient step in establishing non-disclosure to have been material in a case in that category is proof on the balance of probabilities that the Tribunal did take the potentially adverse information into account in making its decision.”[33]
[33] MZAPC at [65].
Again, I would conclude that, even if some weight had been placed on it, the undisclosed template form could not have been material in light of my analysis above and in particular the matters in [101] to [106]. Any inconsistencies in the information provided by Applicant which was recorded in the material were either resolved in his favour or so insignificant in the context of the Tribunal’s detailed consideration of the Applicant’s credit on matters of significance, that even if some weight were placed on that material, there is no realistic possibility that the decision would have been different even if that were not the case.
Ground 2
The second ground advanced by the Applicant is that the Tribunal was incorrect to have regard to s 91R(3) of the Migration Act in determining not to take into account the Applicant’s online activities in Australia which criticised the Iranian government.
In considering the provisions of s 91R(3) of the Act with respect to the Applicant’s online activities, the Tribunal was not satisfied that the Applicant’s conduct was engaged in for a reason other than to strengthen his claim for a protection visa.
Again, the thrust of Ground 2 is that s 91R of the Act, which is set out above, had been repealed at the time of the hearing before the Tribunal.
However, as the Minister submitted, s 91R was repealed by item 12 of Schedule 5 of the Repealing Act. Item 12 was within Part 2 of that schedule. Item 28 of Schedule 5 to the Repealing Act provided that:
The amendments made by Parts 2 and 3 of this Schedule apply in relation to an application for a protection visa that is made on or after the day this item commences. (emphasis added)
Section 2 of the Repealing Act provides that Part 2 of Schedule 5 to that Act that commences on:
A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.
By proclamation, the Act commenced on 18 April 2014 – well after the Applicant made his application for a protection visa on 27 March 2013.
Accordingly, as the Minister submitted, s 91R remained applicable to consideration of the Applicant’s application for the Visa at the time of the hearing before the Tribunal. In light of this, Ground 2 fails.
DISMISSAL
For the reasons which I have given above, I order that the Applicant’s application filed 8 February 2017 be dismissed.
I will order that the Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,853.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Associate:
Dated: 23 September 2021
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