ATU16 v Minister for Immigration
[2018] FCCA 686
•28 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATU16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 686 |
| Catchwords: MIGRATION LAW – Judicial review of decision affirming refusal of protection visa application – applicant claimed to be a member of the Ahmadi faith who practised as lawyer in Pakistan representing minority groups – ambit of obligation to consider integers of claim – application rejected on credibility grounds – scope of obligation to verify documents or facts put before Tribunal – application for judicial review – grounds of application expressed at high level of generality – Tribunal’s decision considered all of applicant’s claims – no jurisdictional error shown – non-disclosure of documents – procedural fairness – whether documents contained material which negatived the suggestion that such non-disclosure deprived the applicant of the possibility of a successful outcome before Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 65, 414, 418, 420, 422B, 423, 424, 426, 427, 430, 438, 476 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 Applicant NAFF of 2002 v Minister for Immigration andMulticultural andIndigenous Affairs (2004) 221 CLR 1 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Minister for Immigration and Border Protection v Singh [2017] HCATrans 107 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Border Protection v SZRKT (2013) 212 FCR 99 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 Patel v Minister for Immigration and Border Protection (2015) 145 ALD 566 Affairs (1994) 52 FCR 437 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZREI v Minister for Immigration [2012] FMCA 718 SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | ATU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 697 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 1 June 2017 |
| Date of Last Submission: | 1 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 March 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed at $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 697 of 2016
| ATU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application dated 6 April 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on
11 March 2016 affirming a decision of a delegate of the first respondent (Minister) not to grant him a protection visa.
This is the fifth occasion that this visa application has been considered.
The applicant is a Pakistani national aged 46 years who claimed to be an Ahmedi. He was admitted to practice as an advocate in the lower courts of Pakistan and claimed to represent the interests of disaffected minorities. The applicant also conducted a business dealing in products as diverse as embroidery and machinery: MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 426, [1], [62].
Background
In November 2011, the applicant first applied for a subclass 456 business visa. On 23 February 2012, he was granted that visa. The applicant arrived in Australia on 1 May 2012.
On 24 May 2012, the applicant lodged an application for a protection visa. As appears from that application, the applicant has had an extensive travel history in relation to his business activities.
By his application, the applicant claimed that the reason he had left Pakistan arose from the receipt of threatening phone calls and of having been attacked. He claimed that his ‘teacher lawyer’ had been targeted and murdered and that he too was on a list kept by extremists. He believed he would also be targeted. Although he had sought police protection, the applicant claimed that the police had discriminated against minority groups and that no protection was provided. The applicant said that he had fled abroad following an attempt by extremists to kidnap him.
The applicant provided a statement dated 22 May 2012 that outlined in some detail the basis on which he believed himself to be a refugee.
On 21 September 2012, a delegate of the Minister made a decision refusing the applicant’s protection visa application. The delegate’s decision record identified the reasons for the decision that the application be refused. The delegate accepted that the applicant was a qualified lawyer who practised as an advocate but was not satisfied that he worked extensively in the legal profession or that he was involved in high profile cases. The delegate did not accept that the applicant’s professional activities would bring him to the attention of extremists.
The applicant sought a review of that decision by the then Refugee Review Tribunal (Tribunal).
By letter dated 25 September 2012, the Department of Immigration and Citizenship wrote to the Tribunal notifying it pursuant to para 438(1)(b) of the Migration Act 1958 (Cth) (Act) that it held certain information in designated folios of the department’s file and that that information had been given to it in confidence. The department’s letter stated a view that the information so identified should not be given to the applicant by reason of the confidence which inhered in those communications. The letter further stated that the Tribunal’s use and disclosure of the information was subject to sub-ss 438(3)-(4) of the Act.
On 4 February 2014, the Tribunal affirmed the delegate’s decision. The applicant sought judicial review. On 29 August 2014, this court dismissed that application: MZABA v Minister for Immigration and Border Protection [2014] FCCA 1928.
On 16 July 2015, the Federal Court allowed an appeal and made orders remitting the application for reconsideration by the Tribunal: MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 426. Bromberg J at [4]-[10] analysed in some detail the claims that had been made by the applicant and summarised those claims at [11] as follows:
(a)his Ahmadi religion (Ahmadi Claim);
(b)his membership of his family group (Family Group Claim);
(c)because of his practice as a lawyer acting both for minorities and against extremists (Minority Lawyer Claim);
(d)because he is an educated professional Ahmadi holding liberal views in favour of freedom of religion, freedom of speech, and democracy (Educated Liberal Claim).
In allowing that appeal, his Honour upheld two of the six grounds that were advanced. First, the Tribunal had failed to deal with each integer of the applicant’s claim. Secondly, in consequence of the failure to deal with each integer of the claim, the Tribunal had not applied the criterion prescribed by para 36(2)(aa) of the Migration Act 1958 (Cth).
Thus, the Family Group Claim had not been properly considered.
In MZABA, Bromberg J at [25] identified the Family Group Claim as having two elements. First, that the applicant’s grandfather had been a prominent Ahmadi politician with the result that the applicant’s family was well known throughout the Punjab. Secondly, the applicant’s family was involved in a current and prominent court case in which they were identified as Ahmadi. His Honour identified the jurisdictional error of the Tribunal as being a failure to deal with the first of those claims and proceeded to analyse that failure in detail: [13]-[14], [26]-[56]. Bromberg J concluded at [57] that the Tribunal had failed to deal with the claim notwithstanding an earlier finding that Ahmadis were subjected to severe legal restriction and discrimination in Pakistan. Bromberg J held that consideration of the claim was required to determine whether the applicant had a well-founded fear of persecution for a Convention reason.
His Honour did not accept the remaining grounds of appeal, being whether the Tribunal had failed: (1) to properly to investigate matters relating to the applicant’s practice as a lawyer and the authenticity of certain documents; (2) to refer to country reports, or; (3) to examine the litigation being pursued by the applicant’s family.
On 2 February 2016, the applicant appeared before a Tribunal, with the assistance of an interpreter, to present arguments and evidence on the issues arising in his application.
On 11 March 2016, the Tribunal made a decision to affirm the delegate’s decision refusing the protection visa application. The Tribunal provided a written statement of its reasons for doing so.
Procedural history
The applicant seeks judicial review of that further decision. The application for review contained a single ground that was refined by six particulars. The applicant’s affidavit filed in support of the application annexes the Tribunal’s decision and repeated five of the particulars for the stated ground of review.
The Minister’s response opposed the grant of relief.
On 31 August 2016, orders were made by consent regulating the preparation of the hearing of the application. Those orders provided an opportunity to the applicant to file any amended application, supplementary court book and submissions by 2 May 2017. The applicant did not do so within the time prescribed by those orders. As a result, the Minister’s submissions were responsive to the matters detailed in the application.
On 24 May 2017, an affidavit was filed on behalf of the Minister which exhibited the department’s letter dated 25 September 2012 and a sealed envelope containing copies of the documents covered by the department’s notification pursuant to s 438. The affidavit explained the decision to exhibit the copy of the documents in a sealed envelope by reference to the Full Court’s decision in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305. The affidavit deposed that on 12 May 2017, the High Court refused special leave to appeal from that decision: see Minister for Immigration and Border Protection v Singh [2017] HCATrans 107.
In light of the refusal of special leave to appeal, the respondent brought to the court’s attention the issues arising under s 438 in this matter, stating that the Minister did not seek to maintain any claim for privilege or confidentiality in relation to the subject documents.
The affidavit and exhibits thereto were served on the applicant.
At the commencement of the hearing on 1 June 2017, the applicant handed a detailed written submission to the court. Leave was granted to file that submission.
In the course of the hearing, the applicant expressed a preference that the Minister’s counsel should first advance the submissions being made against the grant of relief. The applicant then made his own submissions, doing so with the assistance of an interpreter.
In the course of those submissions, the Minister confirmed, and the applicant accepted, that the affidavit affirmed on 24 May 2017, together with each of the exhibits thereto had been served on the applicant and that no claim for privilege or confidentiality was made in relation to the subject documents.
The Tribunal’s Decision
The Minister submitted that the applicant’s grounds of application had been expressed at a high level of generality. In those circumstances it is necessary to examine the reasons of the Tribunal in some detail.
The Tribunal set out the history of the visa application and the series of applications for review including that the matter had been remitted for re-consideration. The Tribunal stated the issues on review as follows:
The issues is this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk that he will suffer significant harm. A summary of the relevant law is attached.
The Tribunal undertook its consideration of the claims and evidence. The Tribunal noted the four bases upon which the applicant sought to invoke protection obligations (being those identified by Bromberg J). It is apparent that, in addition to the Family Group Claim and notwithstanding the rejection by Bromberg J of the other grounds of judicial review relating to the remaining claims, all such claims were pursued before the Tribunal on remitter.
The Tribunal noted that in his protection visa application the applicant claimed to fear serious harm, including being killed by religious extremists or terrorists on return to Pakistan. The applicant claimed he was on a list maintained by extremists and would be targeted on return and that he had received numerous threats and had been attacked.
The Tribunal first considered the applicant’s claims in relation to his Ahmadi religion. For the reasons stated at [16]-[24], the Tribunal did not accept that the applicant belonged to the Ahmadi religion and rejected this claim. It found that the applicant’s oral evidence about the development and practice of his faith in Pakistan was vague, lacking in detail, and at times evasive: Reasons [17].
The Tribunal further noted at [18] that the applicant’s passport identified his religion as Islam, which suggested that the applicant identified in Pakistan as a Muslim, not an Ahmadi. The Tribunal also noted that the applicant’s marriage certificate indicated that he was married under the Muslim Family Laws Ordinance 1961. The Tribunal observed that at the hearing, the applicant was not able to adequately explain why he married a Muslim woman under Muslim law. The Tribunal found that the applicant’s evidence on this issue was evasive.
The Tribunal also noted at [19], that the applicant’s children’s birth certificates state their religion as Islam.
The Tribunal found that the applicant’s oral evidence in relation to his having experienced discrimination on the basis of his Ahmadi religion was vague, lacking in detail and at times evasive. The Tribunal found that the applicant had not practiced his Ahmadi faith at all in Australia. It found the applicant’s explanation to be unpersuasive. The Tribunal found the applicant’s evidence about who actually knew him to be Ahmadi was vague and at times internally inconsistent. The Tribunal had a number of concerns in relation to the applicant’s evidence that his father was also Ahmadi, again finding the applicant’s oral evidence to be evasive: Reasons [20]-[24].
The Tribunal found that the applicant’s claim to a fear of harm on the basis of his claimed practice of the Ahmadi religion was not well-founded. The matters considered in the Reasons at [16]-[24] appear to me to be open and available to support such findings.
The Tribunal then examined the applicant’s Family Group Claim, being that the applicant’s family was well known to be Ahmadi throughout the Punjab by reason that his grandfather had once been a prominent Ahmadi politician and because members of his family were involved in a current and prominent court case concerning his grandfather’s land. It was in relation to this claim that Bromberg J had identified jurisdictional error in the consideration of the matter by the earlier Tribunal: (2015) 234 FCR 425 at [25].
The Tribunal had regard to the applicant’s claim that his paternal grandfather followed the Ahmadi faith and had represented Ahmadis as a member of the Punjab Provincial Assembly from 1987 to 1991 and that he had registered his family to vote in 1987 as non-Muslims. The Tribunal accepted that his grandfather may have been Ahmadi, but did not accept it necessarily followed that this meant the applicant was a follower of that faith. It also noted the applicant’s evidence that while the applicant’s grandfather had been taunted on account of being an Ahmadi in the period that he had held a seat in the Punjab Provincial Assembly, he had not experienced any problems after ceasing to hold that office. By reason of inconsistencies in the applicant’s evidence and country information as to systemic document fraud, the Tribunal had reservations as to whether the applicant’s grandfather was in fact an Ahmadi or that he held a seat in the Punjab Provincial Assembly.
The Tribunal addressed a claim that the grandfather’s house had been burned, noting that this had arisen in the context of a wave of violence by Muslim fundamentalists. The Tribunal recognised that while the grandfather had moved away for a period of one and a half years, he had then returned to his home town, rebuilt his home and continued to live peacefully in that town. The Tribunal considered that the applicant had exaggerated his grandfather’s prominence: Reasons, [25]-[38].
The Tribunal, while not accepting that the applicant was an Ahmadi (and despite some reservations), did accept that he may be considered to follow the Ahmadi faith on the basis of his grandfather’s faith and past position in the political assembly: Reasons, [35].
The Tribunal considered the position of the applicant’s wider family including his uncles and aunts and found the evidence to be of such a general nature as not to support a conclusion that the applicant’s family were widely known to practice the Ahmadi faith: Reasons, [39]-[40].
When giving evidence the applicant had denied that his family had been harmed in the past for being Ahmadis: Reasons [40]. The Tribunal did not accept that the evidence rose to a point where it was satisfied that the applicant would face serious harm from extremists on the basis of being perceived as an Ahmadi because of his membership of his family group in relation to his grandfather’s profile or role as a Provincial Assembly member: Reasons, [41].
The Tribunal then considered the litigation involving the family’s land. It considered a judgment supplied by the applicant relating to the family claim, noting that it contained no reference to Ahmadis. The Tribunal accepted that in 1945 the Lahore High Court had granted a decree providing, in substance, that after the death of the applicant’s grandfather, the grandfather’s sale of the land would not affect his son’s reversionary right to that land. However, the Tribunal identified a number of concerns about the applicant’s claim that his family were seeking possession of the land. It found that there was no evidence that this litigation was ongoing.
The Tribunal expressed reservations as to the authenticity of documents said to be submissions made in relation to the claim. There was no evidence to support the assertion that the claim was the biggest land case in the Punjab and no newspaper or like evidence to suggest that it had the prominence now suggested: Reasons, [42]-[57].
The Tribunal addressed the applicant’s claims of past harm
to family members. The Tribunal rejected a claim to risk of harm based on his uncle’s kidnapping some 10 years previously. While accepting that the uncle may have been kidnapped and that his brother and brother-in-law might have been arrested, detained and mistreated by the police in 2012, the Tribunal did not accept that the applicant faced a real chance of serious harm from the authorities, other Muslims, opponents in the family land case, extremists or terrorists or anyone else for reasons of the applicant’s membership of his family group or an imputed Ahmadi religion: Reasons, [59]-[66].
The Tribunal next considered and rejected the applicant’s claims relating to his practice as a lawyer for minorities and against extremists: Reasons, [67]-[78]. The Tribunal found at [78] as follows:
As the applicant was unable to provide any examples of minority cases or cases against extremists when asked at the hearing, the Tribunal also does not accept that he was involved in any such cases in the past in Pakistan and would not be on return.
The claim that the applicant had acted for parties in cases concerning breach of Pakistani blasphemy law was rejected.
The Tribunal then considered and rejected the applicant’s claims of past harm. The applicant had made claims to having been taunted, threatened, attacked physically and kidnapped. The Tribunal considered each of those claims in detail: Reasons, [80]-[118].
Finally, the Tribunal considered the applicant’s claims as an educated professional Ahmadi who held liberal views. It will be recalled that the Tribunal did not accept that the applicant was Ahmadi or that he faced a real chance of persecution on account of being perceived as an Ahmadi. The Tribunal found the applicant’s oral evidence about his alleged liberal views and beliefs to be vague, general and lacking in details, not least because he was unable to articulate what were the specific views that he held: Reasons, [122].
The Tribunal found that the applicant was not a person to whom Convention protection was owed: Reasons, [125]-[126], [131].
The Tribunal considered complementary protection and for the reasons set out in relation to the Convention claim, did not accept that there was a real chance that the applicant would face serious harm should he be returned to Pakistan: Reasons, [127]-[132].
Judicial review
On an application for judicial review the court is required to determine whether the Tribunal’s decision is affected by jurisdictional error: s 476; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. It is axiomatic that the exercise of its curial jurisdiction does not “go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power”: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, [81] applying Attorney-General (NSW) v Quin (1990) 170 CLR 1, 76; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [25].
As stated above, the applicant advances a single ground of review being that the decision of the Tribunal was made without jurisdiction or was affected by error of jurisdiction.
Six particulars were provided of the stated ground and it is convenient to treat them and to address each as a separate ground of review.
Ground 1– Failure to consider integer of claim
Ground 1 reads
The tribunal has failed to consider each integer of the applicant’s claim and/or failed to take into account the whole of the evidence in determining whether the feared persecution claimed amounted to persecution and serious harm as per section 91R of the Migration Act.
It will be recalled that the applicant succeeded before Bromberg J on this ground of judicial review in its application relating to the initial Tribunal: (2015) 234 FCR 426, [25], [57].
The applicant written and oral submissions did not identify what integer it was that the Tribunal had overlooked. In AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193, [37] the Full Court had no doubt that the integers of the claim (which had not been identified in the grounds of judicial review) had been squarely identified and considered by the Tribunal.
By s 414, the Tribunal is required to review an applicant claims. To make a decision upon a merits review without having considered all of the claims so made is to fail to complete the statutory task required of the Tribunal. For that reason, each of the components, or integers, of each claim must be considered: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, [42]; Minister for Immigration and Border Protection v SZRKT(2013) 212 FCR 99; Minister for Immigration and Border Protection v MZYTS(2013) 230 FCR 431. A failure to consider the integers of each claim or a failure to consider a sufficiently significant item of evidence may amount to jurisdictional error. A failure to make a finding upon a relevant fact may amount to jurisdictional error.
Where a Tribunal fails to make a finding upon a substantial, clearly articulated argument relying upon established facts, such failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. In other cases, a failure of this kind is characterised as the Tribunal having exceeded its jurisdiction. The failure is constituted by a failure to consider each substantial, clearly articulated argument. The argument must arise expressly or be squarely or sufficiently raised on the material: SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121, [50]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [53], [62]; see also Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, 394, [24], [95]; Singh v Minister for Immigration and Border Protection[2017] FCAFC 195, [27]; Commissioner of Taxation v Primary Health Care Limited[2017] FCAFC 131, [24]; AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 at [14].
The test posed in NABE at [62] and endorsed in SZTQP at [50] is whether a Tribunal has failed to deal with a claim that had been raised by the evidence and contentions before it which, if resolved in one way, would or could be dispositive of the review. If a failure of that kind is established it may constitute a failure of procedural fairness. But it is not necessary for the Tribunal to refer to every piece of evidence in its reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46].
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, Kenny, Griffiths and Mortimer JJ at [34] characterised the error in failing to consider more recent information as being a failure to perform the statutory task imposed on the Tribunal by the Act. The Court reasoned that by s 414 the task to be performed by the Tribunal was to form for itself on the material before it the requisite state of satisfaction under s 65 of the Act. It observed that, commonly, if not uniformly, such satisfaction turned on the criterion posed by para 36(2)(a); namely, whether the applicant was a non-citizen in Australia in respect of whom Australia owed protection obligations because the person was a refugee. The definition of refugee is found in s 5H. The Court held at [33]-[34] that:
The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.
Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded. (Emphasis added)
In those passages, the Full Court identified the settled approach that is required in the consideration of a merits review on a protection visa application and the tasks that it entails: see also CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14, [23].
The ambit of the Tribunal’s obligation to consider a clearly articulated argument was considered in detail by Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591, [35]-[42]. Her Honour distilled the principles as follows at [40]:
The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as “a substantial and clearly articulated argument”. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by section 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument. (Emphasis added)
As Mortimer J explained at [42], “assessments by a reviewing court of whether the identified argument was “substantial and clearly articulated”, and what the Tribunal did or did not do in its reasons in terms of considering it, will be highly fact dependant and will need to be considered against the background of each individual case”.
More recently, in BDJ15 v Minister for Immigration and Border Protection [2017] FCA 1281, [49], Charlesworth J, citing MZYTS, emphasised that the Tribunal was required to examine and deal with the claims for asylum that were made by the applicant. Other recent authority suggests that some care is required in the application of the holding in MZYTS: see ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054, [24]-[33] (Bromberg J).
In SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, Robertson J examined the scope of the requirement to deal with claims that had been expressly articulated or squarely or sufficiently raised by the material: [44]-[52]. His Honour endorsed views that: (1) the Tribunal was not required to deal with claims which were not articulated and which did not clearly arise from the material before it; (2) the court insists that on judicial review, a decision of the tribunal must always be considered in light of the basis on which the application was made, not on an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process; (3) if the claim was not expressly made, it must emerge clearly from the materials before it; (4) a conclusion that the tribunal has failed to consider a claim which is not expressly advanced is not to be made lightly: (citations omitted).
The dual requirements that the claim must be substantial and clearly articulated (or must emerge clearly from the materials before it), combine to underscore the restraint to be shown before concluding that a Tribunal has exceeded its jurisdiction.
Before it can be determined that a Tribunal has exceeded its jurisdiction by reason of a failure to consider a claim, it must be demonstrated that the claim which is said not to have been considered is properly characterised as being substantial and as having: (1) been clearly articulated by the applicant, or; (2) emerged clearly from the materials. The requirement that the claim be ‘substantial’ draws attention to the need to demonstrate that such claim may have had a direct bearing on the conclusion whether the criteria in para 36(2)(a) or (aa) were satisfied. In cases where the claim was not expressly made but is said to have clearly arisen on the material before it, the court should not lightly draw such a conclusion. Whether judicial review is sought in relation to a claim expressly made or as arising squarely on the material, it must also be shown that the claim or integer was made out on established facts or contentions.
For those reasons, a Tribunal’s decision must always be considered in light of the basis on which the application was made. Judicial review is not an opportunity to advance a claim which had never previously been put forward as the basis on which an application for a protection visa should have been considered on its merits. To do so would invert the process by which administrative decisions may be reviewed.
In the present case, the applicant was asked to identify the integer of his claims which had not been considered. The applicant referred to certain letters from presidents of bar associations which described the nature of the applicant’s criminal practice including ‘sensitive issues like religious issues.’ He responded that the Tribunal could have but did not verify the authenticity of the contents of those documents.
So understood, the applicant’s complaint that the Tribunal had not considered an integer of a claim was in truth a complaint that the Tribunal had failed to make inquiries and confirm the authenticity of the letters referred to above. Although the complaint then overlapped with Ground 2, I will address it in the context in which the applicant advanced his oral submission as being part of Ground 1.
This complaint should be considered in the context that s 36 identifies the criteria upon which a protection visa may be granted. In this case, the criteria in paras 36(2)(a) and 36(2)(aa) arise for consideration.
The grant or refusal of a protection visa requires that the Minister has been satisfied or not satisfied (as the case requires) that the criteria prescribed for such visa have been ‘satisfied’: ss 36(2)(a), 36(2)(aa), 65(1)(a), 65(1)(b). Ministerial satisfaction that a protection visa applicant has fulfilled the criteria prescribed by s 36 is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives, authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102]. For those reasons, is clear that s 65 requires the decision-maker to refuse to issue a visa in the absence of a positive finding of satisfaction of the criteria applicable to the particular visa application: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275. ^
As stated above, where a valid application is made for review of a decision to refuse a protection visa application, generally the Tribunal must conduct a review of that decision: s 414. The Tribunal is to act in an inquisitorial manner. While the applicant puts before the Tribunal whatever material he or she may consider to be of assistance to the determination of their claim, it is for the Tribunal to make findings of fact which it considers to be necessary for it to make its decision: Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, [73]. While the Tribunal operates in an inquisitorial manner, it is under a duty to arrive at the correct or preferable decision on review according to the material which is before it: MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133, [56]-[58].
However, the Tribunal is not required to accept uncritically the matters advanced by an applicant. Nor is it required to have rebutting evidence before it can make a finding that a particular factual assertion by an applicant is not made out: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146, [65]; Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Randhawa v Minister for Immigration and Local Government and Ethnic Affairs (1994) 52 FCR 437, 451.
Division 4 of Part 7 of the Act concerns Part 7-reviewable decisions: conduct of review and is comprised of ss 422B-429. Division 4 contains an exhaustive statement of the natural justice rule in relation to the matters with which it deals: s 422B. It allows that an applicant may provide a statutory declaration and written argument: s 423. It also confers on the Tribunal a series of related powers in relation to the obtaining of information and evidence and how it must be dealt with.
By s 424, power is conferred on the Tribunal to get any information it considers relevant. The power conferred by s 424 is to be read with:
(a)sub-s 426(2)-(3), which provide that an applicant may request the Tribunal to obtain oral evidence from a person and that where such a request is made the Tribunal must consider the request but is not required to accede to it;
(b)sub-s 427(1)(d), which confers a range or powers on the Tribunal, including to arrange for the conduct of investigations and obtaining of medical reports;
(c)sub-s 428(2), to take evidence in Australia or overseas.
These powers are ancillary to the power conferred by s 424.
Division 5 of Part 7 of the Act concerns Part 7-reviewable decisions: Tribunal decisions and is comprised of ss 430-431. By s 430 of the Act, the Tribunal is required to prepare a written statement setting out its decision on review together with the reasons for that decision and the findings on which it was based.
The combined effect of the requirements stated in s 430 is that where conflicting accounts are presented, it is for the Tribunal to determine which of those accounts it accepted. By reason of the statutory task before it, the Tribunal is bound to decide between those inconsistent accounts: Minister for Immigration, Multicultural and Indigenous Affairs v SLGB (2004) 78 ALJR 992, [44] (Gummow and Hayne JJ, Gleeson CJ agreeing); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [20], [86].
While the Tribunal functions in an inquisitorial manner, the conferral of power to receive information is coupled with an obligation to consider whether to exercise that power in a particular case: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [1]. The power so conferred is discretionary and is not subject to a general duty or obligation to make inquiries: SLGB, [43]; SZGUR [20], [86].
Absent an exceptional circumstance, the Tribunal is neither obliged to prompt an applicant to provide additional evidence, nor is it required to conduct investigations which might improve an applicant’s case: SZREI v Minister for Immigration [2012] FMCA 718, [31], per Smith J, citing Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, [1]; SZGUR (2011) 241 CLR 594, [1], [20], [86].
Equally, the requirement for a Tribunal to act reasonably is not exhausted in every case where an applicant is given a reasonable opportunity to give evidence, provide information and present arguments in relation to the decision under review. It is well established that a failure to make an obvious inquiry upon a critical matter could provide a basis for a conclusion of jurisdictional error. In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, the plurality made the following obiter statement at [25]:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.
Again, in Minister for Immigration and Border Protection v SZGUR (2011) 241 CLR 594, French CJ and Kiefel J at [23] and Gummow J at [74], [78] (with whom Heydon and Crennan JJ agreed), each referred to the above passage in SZIAI and observed that it had not been necessary in that appeal, nor the appeal of SZGUR, to explore the principles as to whether and in what circumstances a failure to make inquiry may result in a decision being so affected as to constitute jurisdictional error.
More recently, as concerns exercise of the power conferred by s 424 to make inquiries, the scope of the obligation to make such inquiries was described by a Full Court as ‘very limited’: Wozniak v Minister for Immigration and Border Protection [2017] FCAFC 148, [25]. In this context, even where it may have been reasonable for a Tribunal to have made an inquiry, the failure to do so does not automatically convert or elevate the failure to jurisdictional error: SZMJM v Minister for Immigration and Citizenship [2010] FCA 309, [10]; MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052, [63].
While the notion of a freestanding obligation to inquire has been rejected, the Full Court has emphasised that the central question remains whether the Tribunal has faithfully carried out its function of review: Patel v Minister for Immigration and Border Protection (2015) 145 ALD 566, [21]; see also Wei v Minister for Immigration and Border Protection (2016) 257 CLR 22, [49]-[52]; Uelese v Minister for Immigration and Border Protection (2016) 256 CLR 203, [102], [119]; CPE15, [2017] FCA 591, [38]-[39]. So in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Gageler J stated at [100] that:
. . . while it has been held that the MRT has no general duty to make inquiries, it has been accepted that ‘a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.’ The touchstone is reasonableness in the performance of the duty to review.
(Emphasis added. Citations omitted).
The principle so stated is plainly couched in qualified terms.
The principle has been applied most commonly in cases where a request for further time to establish an obvious or critical fact: see, eg, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594. The facts of Li and Wei respectively illustrate the point clearly. In Li, the Tribunal refused an adjournment in circumstances where it was clear that little time was required for the applicant to obtain a further skills assessment for a residence visa. In Wei, the delegate knew that the letter advising of the proposed cancellation of the visa had been returned unclaimed. The steps open to be taken by the delegate in attempting to contact the applicant and inform him that consideration was being given to cancellation of the visa were both obvious and easily undertaken. In each case, the Tribunal had acted unreasonably upon a critical issue and in a way that constituted jurisdictional error.
The evaluation whether the failure to make an obvious inquiry upon a critical fact constitutes jurisdictional error is a fact intensive one. In AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 at [47], Tracey J accepted that a Tribunal was not under any obligation to gather evidence or to make a case. However, his Honour held that in the circumstances of that case, a failure to make an obvious and relatively easy inquiry in relation to matters which had the potential to have a material bearing on the applicant’s credibility in the circumstances of that case sufficient to constitute jurisdictional error. As his Honour’s analysis demonstrates, the applicant’s credibility had been comprehensively rejected and critically had led to the rejection of all of the applicant’s evidence supporting his claim: see at [15], [22].
The overarching obligation to consider whether the Tribunal had faithfully carried out its review function may be explained in part on the basis that although Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals, the Tribunal remains subject to an obligation to act in a way that is fair and just: sub-s 422B(3); see also Plaintiff S157, supra [37] (Gleeson CJ).
By way of overview, where an application for review of a Part 7 reviewable decision is made, the applicant may submit a statutory declaration and written argument on the merits application. In conducting a review, the Tribunal is then bound to make a decision, including in circumstances where inconsistent evidence is presented. In doing so, it is not bound to exercise the discretionary power to make inquiries and so is not subject to a duty or obligation to do so. Jurisdictional error may sometimes be established on the ground of unreasonableness where a Tribunal has failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained. However, the scope of the obligation to make inquiries is so limited. In applying these principles the question whether the Tribunal had faithfully carried out its function of review and so acted reasonably lies in an assessment of the performance of the review as a whole.
From the outset it should be recognised that it was for the applicant to advance whatever evidence and argument he sought to rely upon in support of his application: Abebe v Commonwealth (1999) 197 CLR 510, [187] (Gummow and Hayne JJ). Further, in light of the result of the earlier Tribunal hearing, the applicant knew that his claims might not be accepted: cf Abebe, [188]. As stated above, s 65 requires the decision-maker to refuse to issue a visa in the absence of a positive finding of satisfaction of the criteria applicable to the particular visa application: Lay Lat (2006) 151 FCR 214, [72]; Wu Shan Liang (1996) 185 CLR 259, 274-275.
Contextually, I note that in MZABA, Bromberg J considered and rejected an equivalent ground of review made by the applicant in relation to the earlier Tribunal decision: (2015) 234 FCR 425, [59]-[86]. His Honour concluded at [78] that while it may have been an obvious matter to make an inquiry, the failure to verify the genuineness of the bar association letters was non-critical: see also at [81].
The present case is distinguishable from AMT15 where the Tribunal had rejected the applicant’s case in its entirety including the rejection of all supporting evidence. The present Tribunal did do go so far. Here, the Tribunal did accept it to be plausible that the applicant may have maintained his membership of the Gujranwala Bar Association and possibly taken on two to three cases after pursuing his business as he had claimed: Reasons, [70]. The Tribunal, however, did not accept that he had acted on behalf of minorities or against extremists.
The Tribunal satisfied itself that the applicant had not worked on the sort of cases that he was asserting and concluded that neither the applicant, nor his family, had been attacked as he claimed.
The passage of the Tribunal’s reasoning to which the applicant may be taken to have referred was at [118] where the Tribunal identified three letters which had been submitted to the earlier Tribunal. After referring to the content of those letters, the Tribunal found at [118] that it would attach little weight to those letters by reason that it did not accept that the applicant practised as a lawyer representing minority cases or cases against extremists and did not accept that he or his family had been attacked. That is to say, the Tribunal did not reject those letters in their entirety but decided to attach little weight to them for the reasons given. It was reasonably entitled to do so on the material that was before it.
The detailed analysis at [67]-[118] confirms that the Tribunal considered each of the bases on which the applicant advanced a claim to his practise as a lawyer, to having been exposed to harm on prior occasions and the risk of such harm. As the Reasons demonstrate, the Tribunal attached little weight to the letters for the substantive reasons that it had found the applicant did not practice as a lawyer representing minority cases or cases against extremists and because it had not accepted the applicant or his family had been threatened or attacked. The Tribunal was not obliged to prompt the applicant to verify the authenticity of the letters. He did not seek to do so. The failure to allow time to the applicant to verify the letters, or to do so itself (if such was a failure), was not determinative. It was not a critical fact. There was no obligation or duty on the Tribunal to do so and it was not unreasonable for it not to have done so.
I consider that the reasons given by the Tribunal provide ample justification for the conclusion that the claim was not made out.
In my view the Tribunal’s decision demonstrates that it brought a consciousness of the central issues raised by the applicant to its determination of the review. In particular, the applicant’s complaint of a failure to verify the letters in question arose in the context of his claims to having suffered harm in the past. In that context, it is clear that the Tribunal carefully considered the claims and evidence before it.
As the applicant identified no integer which the Tribunal failed to consider and for the reasons stated above, Ground 1 is rejected.
Ground 2 – Verification of documents
Ground 2 reads:
The applicant has made a number of claims regarding his practice as an Ahmadi minority lawyer and has produced a number of documents to support this. The tribunal has rejected these documents on mere speculation that it had doubts about the authenticity of the certificates. The tribunal has access to facilities which assess the authenticity of documents and the tribunal should have verified these documents, rather than speculating and making generalized statements that fraudulent documents are rife in Pakistan. (Emphasis added)
This is a further formulation of the complaint of failure to verify and engages consideration of the principles upon which the discretionary power conferred by sub-s 424(1) is engaged.
For the reasons given in relation to Ground 1, the Tribunal’s failure to make further inquiry did not, in my view, lead to a failure to review as required. Ground 2 is rejected.
Ground 3 – Verification of applicant’s legal practice
Ground 3 reads:
It would have been very easy for the tribunal to verify whether the applicant was a practising lawyer until his departure to Australia and the tribunal has failed to do this. (Emphasis added)
This ground is devoid of merit. The Tribunal gave applicant the benefit of the doubt that he was a practising lawyer until his departure from Australia: Reasons, [70].
For the reasons stated above, Ground 3 is also rejected.
Ground 4 – country information
Ground 4 reads:
The tribunal has failed to refer to country information/reports which contain information about the treatment of lawyers who act for minorities and the general situation in Pakistan, re political violence and the influence of terrorism as the tribunal had nevertheless made a finding that the applicant was a practising lawyer until 2000.
(Emphasis added)
The Minister’s written submissions stated, correctly, at [35] that:
It was not necessary for the Tribunal to refer to any such country information because it concluded the applicant did not act for minorities. It has not committed any error on this account; MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 425 at 448 [87] Bromberg J.
In MZABA, Bromberg J considered that it was unnecessary for the earlier Tribunal to have had regard to country information as it had found the applicant did not act for minorities or extremists. Parity of reasoning would support an entitlement in the present Tribunal not to have done so upon a similar finding (which it made).
It is clear that the Tribunal had regard to a range of country information in the evaluation of the applicant’s protection visa application.
It is also clear that the Tribunal considered in detail whether the applicant had acted for minorities: Reasons, [67]-[118].
Further, Ground 4 does not identify what country information/reports were the subject of failure on the Tribunal’s part in relation to “the general situation in Pakistan, re political violence and the influence of terrorism”. The level of generality of Ground 4 presents difficulties for the court in analysing a complaint which is devoid of particulars.
While the position of a self-represented litigant cannot be ignored, equally it cannot be ignored that the applicant claims to be a practising lawyer. Given the absence of specificity, no basis is demonstrated why Ground 4 should be upheld: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, [35]. Ground 4 is rejected.
Ground 5 – Consideration of para 36(2)(aa)
Ground 5 reads:
The Tribunal has erred when considering section 36(2)(aa).
Paragraph 36(2)(aa) of the Act addresses the circumstances in which Australia may owe a person complementary protection obligations.
Again, no particulars are given of what the error is supposed to be. As stated above, Bromberg J upheld an equivalent ground of review in relation to the earlier Tribunal decision: (2015) 234 FCR 425, [89]-[93]. However, his Honour did so only by reason that the court had upheld the applicant’s ground that the earlier Tribunal had not considered each integer of the claim by not addressing the Family Group Claim: [93].
For the reasons above, I have not found any jurisdictional error in relation to the other grounds of review and as I have also found that Ground 6 is not made out, no basis for Ground 5 is established.
The Tribunal expressly addressed the complementary protection regime: Reasons at [127]-[130]. There is no error in a Tribunal referring to its previous findings in doing so: SZSGA, [56]-[57]. I detect no error in the Tribunal’s consideration of the matter. Ground 5 is rejected.
Ground 6 – Imputation of Ahmadi faith?
Ground 6 reads:
The Tribunal failed to consider as labelled and impugned Ahmadi small group of family and family land case based on Ahmadi as considered federal court.
This final ground was added to the application in hand writing.
The expression of Ground 6 is almost unintelligible. Insofar as the ground contains reference to the consideration of the matter by the Federal Court it may be taken to be a reference to the decision of Bromberg J referred to above. There, his Honour upheld the applicant’s claim that there had been a failure to consider an integer of a claim on the basis that the Family Group Claim had not been considered.
In addition, Bromberg J did consider the applicant’s claim that his Ahmedi faith would be well known or imputed to the applicant, and in doing so considered that part of the applicant’s claim arising from the family litigation for title to land as part of the Family Group Claim: (2015) 234 FCR 425, [25], [29], [36]-[48]. His Honour addressed the family claim to land and exposed the complexities of the claim arising from the interaction of: (1) alienation in 1935 of a parcel of land by the applicant’s grandfather; (2) a decree issued in 1945 by the High Court of Lahore upholding the family’s interest in that land despite the purported alienation; (3) the effect of Ordinances passed in 1962 and 1983 which made certain decrees void and or no effect; (4) a claim that the applicant was deemed to be an absolute owner of the land; (5) commentary on such claims which considered whether such litigants were Ahmadi’s or, more widely, non-Muslims: [38]-[45].
As Bromberg J observed, it was entirely understandable that the earlier Tribunal may have had difficulty understanding the applicant’s submission in relation to this litigation and why it was relevant: [45].
More importantly however, Bromberg J concluded that while the failure to understand that litigation may have entailed error, this did not constitute a substantial error of a kind sufficient to involve jurisdictional error. His Honour stated at [45]:
. . . while the authorities contemplate that the failure to understand a substantial submission can constitute jurisdictional error, I do not think that this submission is in that category. To illustrate by way of distinction, in SZTVA v Minister for Immigration and Border Protection [2014] FCA 1334, the “substantial argument” that was overlooked was that SZVTA “faced a present risk because the political situation in West Bengal had recently heated up” (at [9]). Here, the appellant’s “substantial argument” was that there was a court case that identified his family as Ahmadi. The Tribunal understood that submission and dealt with it. If, in so doing, it made errors as to the content of foreign law, any such errors would have been errors of fact. Any error was not jurisdictional. (Emphasis added, citation omitted)
In those circumstances, his Honour concluded that a misunderstanding of the significance of the family land litigation or its impact on the applicant’s claims in support of his protection visa application did not suffice to constitute jurisdictional error by the earlier Tribunal.
In the present application, the Family Group Claim, including the family land claim, was considered in detail by the Tribunal.
Relevantly, to Ground 6, Bromberg J also recognised the distinction to be drawn between identifying the applicant as being an Ahmedi and of his being imputed with that identity: (2015) 234 FCR 425, [19], [21], [29]-[31], [35], [37], [39], [47,], [50]-[51], [55].
Contrastingly, the Tribunal here considered and rejected the applicant’s claim that he belonged to or practised the Ahmedi faith, identified as an Ahmedi or that he had experienced harassment or harm in Pakistan on the basis of his claimed religion: Reasons, [16]-[25]. Yet it expressly accepted that the applicant may be imputed with having an Ahmedi identity. The Tribunal stated at [35] that while it had not accepted the applicant held an Ahmedi faith, it “does accept that the applicant may be considered to follow the Ahmedi faith . . .”
Having done so the Tribunal proceeded to explain its reasons why it did not accept the applicant faced a real chance of serious harm.
In all of those circumstances, I discern no jurisdictional error in the approach taken by the Tribunal in its treatment of his family land claim or his claim that he was to be imputed with being an Ahmedi.
Ground 6 is rejected.
Applicant’s written submission – Merits review
The applicant’s written submission filed, with leave, on 1 June 2017 was dated 23 May 2017. I have considered that submission. I agree in the Minister’s submission that the matters addressed reflect an attempt to raise for consideration matters appropriate for determination on a merits review.
A review of the merits of an application for a protection visa is conducted by the Tribunal: s 420(b). An application for review in this court is an application for judicial review: sub-s 476(1). To seek a merits review by this court is impermissible: Wu Shan Liang (1996) 185 CLR 259, 272.
I have considered the applicant’s written submission in addition to the matters which he raised before me at the hearing. Nothing in those written submissions identifies any jurisdictional error in the decision of the Tribunal.
Section 418 material – Discretionary considerations
While the applicant is self represented before me, I note that he is also qualified to practise as an advocate in Pakistan. The applicant’s written submissions filed at the commencement of the hearing reflected his familiarity with the nature of an advocate’s practice.
I have outlined above that the applicant accepted he had been served with the affidavit affirmed on behalf of the Minister which exhibited certain documents about which the Tribunal had been notified by the department pursuant to s 438 of the Act and that the Minister had disavowed any claim for privilege or to protect confidentiality in those documents. In the result, the applicant had been given those documents and been free to take any issue in relation to the possible impact that those documents might have had in relation to the conduct of the hearing before the Tribunal.
In SZSSJ, the Court considered three basic principles in an evaluation of whether there had been a denial of procedural fairness in that appeal. The Court observed at [83] that an aspect of the entitlement to be accorded procedural fairness was that a person be put on notice of the nature and content of information that might be taken into account as a reason for coming to a conclusion adverse to that person. However, by way of qualification to that observation the Court also stated that ordinarily “there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which [it] has chosen not to take into account at all in the conduct of the inquiry.” Their Honours proceeded to state at [84] that there was no principled reason why a repository of power should be required to disclose all that it knows.
It follows that while the applicant was entitled to procedural fairness, it does not require that he be notified of information that had no bearing at all on the deliberation or decision of the Tribunal.
The Minister has drawn the court’s attention to the fact that there was material before the Tribunal which was not revealed to the applicant, and concedes that the decision in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 demonstrates that the Tribunal may fall into jurisdictional error where it has kept material confidential and not informed the applicant of its existence and provided him or her with an opportunity to make submissions.
When the matter was canvassed with the applicant at hearing, he indicated that he was keen for the court to look at the documents, (transcript p. 49). The circumstance that no objection was taken might be considered in the context that the applicant’s legal practice was focussed in the area of criminal law. As noted above, the Minster did not seek to maintain any privilege or confidentiality which might otherwise have inhered in those documents.
The difficulty presented by non-disclosure of the documents in this case requires consideration of the principles upon which the court may refuse relief for judicial review on discretionary grounds: see Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [58], [104], [148].
In SZBYR v Minister for Immigration and Citizenship (2007) 235 CLR 602, Kirby J considered at [54]-[59], [88]-[91] the applicable principles. His Honour stated at [88] that a sound basis for a Tribunal decision may be demonstrated even if a postulated error had occurred “in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.” His Honour prefaced that statement upon a caveat that discretionary refusal of judicial review must be exercised “with care, particularly where the hypothesis of jurisdictional error is a possibility. However, in some such cases . . . invocation of the discretion is proper, prudent, economical and just.” The plurality and Hayne J were agreed that the case was one in which discretionary considerations weighed against the grant of relief, but did so on a narrower basis: at [29], [91].
In SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16 at [63] the Full Court observed in circumstances such as the present, it is not “necessary, in such a case, for the reviewing court to speculate as to what the applicant might or might not have done had he or she known about the contents of the documents before appearing at the Tribunal”. The relevant question for this court is to determine is “whether the documents contained material which negatived the suggestion that the non-disclosure deprived the applicant of the possibility of a successful outcome”: Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194, [73]-[74].
Having looked at the documents, I consider that they are irrelevant to the Tribunal’s determination. In each case they concerned fingerprint verification of the applicant. Those reports had nothing to say in relation to any of the applicant’s claims for protection.
To adapt the Full Court’s reasoning in SZVDC, [63], the documents contained material that, on no view, could be thought to have prejudiced the interests of the applicant and could not and did not, even possibly, undermine the applicant’s prospects of a favourable decision by the Tribunal: see also CQZ15, [72]; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, [85]-[86]. To apply the principle in SZSSJ at [83], there was no denial of procedural fairness in failing to put the applicant on notice of the documents once they came into the Tribunal’s possession. They were not taken into account at all in the conduct of this inquiry.
I consider that the failure to reveal to the applicant both the existence of and nature of the documentation and to give him an opportunity to respond results in no practical injustice at all.
Conclusion
The applicant’s grounds of review are not made out and the application must be dismissed.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Date: 28 March 2018
3
56
2